p2pnet news | Advertising:- “Not so long ago Tanya Andersen was an ordinary Oregon mother with a young daughter, Kylee,” I posted a few days ago, going on >>>

A former legal worker, she was living on a medical disability pension.

Then her world suddenly collapsed.

She’d been marked out for special attention by Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA (Recording Industry Association of America).

Warner Music, EMI, Vivendi Universal and Sony BMG have for five years been getting away with the vicious and non-stop persecution of their own customers in a fruitless effort to force them to become compliant consumers; and, to gain control of how, and by whom, music is distributed online.

Using their RIAA (Recording Industry Association of America) as a blunt weapon, they tried to hammer Andersen into confessing to ‘crimes’ she’d never committed, and although they knew full well she was ill and living on a medical disability pension, they nonetheless tried to extort thousands of dollars from her.

The lengths the Big 4 and their RIAA have gone to in their efforts to beat her into submission are truly unbelievable but fortunately for her, she was able to gain the services of local lawyer Lory Lybeck, whose dogged determination has kept her case from foundering and whose support has, quite possibly, helped to keep Andersen out of hospital.

Below is his blow-by-blow description of exactly how the RIAA went about trying to terrorise Andersen, even stooping so low as to use her at the time seven-year-old daughter, Kylee, as a weapon against her.

It’s necessarily repetitious, but nonetheless makes fascinating, if horrifying, reading.

How four multi-billion-dollar, international corporate record labels have been able to get away with this a so-called democratic United States of America is beyond belief.

I’m based in British Columbia, Canada, and I’ve been asked a number of times why I spend so much time on American sue ‘em all cases.

In Canada, we can download freely as long as our downloads are for our own use.

But the Big 4 have already spent literally millions of dollars lobbying our weak Conservative government to have our copyright laws changed to suit the corporate music industry. And they’ll spend millions more.

In the US, Vivendi Universal (France), Sony BMG (Japan and Germany), EMI (Britain), and Warner Music (US) rule. They say Jump and the Bush administration asks, How high?

The same thing will happen in Canada if the Big 4 have their way.

Now, read it. And weep.

[NOTE: I broke this line by line out of a (shudder) .pdf file linked to on Ray Beckerman’s Recording Industry vs The People and although I tried to be careful, I may have inadvertently left something out. If that’s the case, I apologise in advance.]

Jon Newton - p2pnet

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Killing “Dolphins” by Direct Threat and Intimidation

1.1 For nearly three years of her life, Tanya Andersen and her young daughter were subjected to an outrageous series of baseless accusations and unrelenting threats of financial ruin. The world’s four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music. The enterprise is conducted with total disregard for innocent individuals. Dead people have been sued. Children have been sued. People without computers have been sued. As a senior RIAA spokeswoman explained: “When you fish with a net, you are going to catch a few dolphins”.

By their own early admission, they were knowingly engaged in a “driftnet fishing” operation and “innocent dolphins” were the collateral damage in their “nets”.

Nationwide Conspiracy of Crime

1.2 In 2003 and before, the Big 4 recording companies conspired with the enforcement/lobbying arm of the music cartel — the RIAA — and MediaSentry to devise an investigation scheme that was both illegal and seriously flawed. The scheme was based on secret private investigations by unlicensed, unregistered and uncertified private investigators.

These private investigators claim to have illegally entered the hard drives of tens of thousands of private American citizens to look for music recordings stored there. This personal invasion is a crime in virtually every state in the country. If music was “discovered” through this illegal process, the private investigators would then sell the identity of the computers’ internet protocol address to the RIAA and the Big 4 record companies.

Anonymous Lawsuits Clog the Courts

1.3 The Big 4 record companies and the RIAA then filed thousands of anonymous lawsuits suing “John” or “Jane Does” for the sole purpose of issuing a subpoena to an internet service provider (ISP). The ultimate purpose of these information-farming suits is to obtain the name and address of a person who had opened the ISP account that was associated with a computer illegally invaded by MediaSentry. The anonymous lawsuits are typically then dismissed.

False Threats and Extortion

1.4 The Big 4 record companies commit mail fraud, wire fraud and other criminal acts in threatening, coercing and attempting to extort payment of money from individuals who MediaSentry had been paid to identify. False claims are made that proof exists of serious copyright infringement by the individual and that the individual owes hundreds of thousands of dollars or more to the RIAA. The Big 4 record companies and the RIAA know that these claims are untrue and that in most cases the individual threatened has not downloaded music or engaged in any copyright infringement.

Sham Debt Collectors

1.5 If the initial extortion efforts are not successful, another coconspirator to the criminal enterprise is added. The Settlement Support Center was initially set up in an industrial building south of Seattle. It was essentially a boiler room phone bank manned in large part by retired police officers. They were employed to use an “air of authority” in a second effort to coerce and extort payment from mostly innocent individuals.

Sham Lawsuits Against Innocent Individuals

“Shamigation” and “Spamigation”

1.6 If the pre-suit enterprise of coercion is not successful in extorting payment from innocent individuals, the Big 4 record companies and the RIAA direct a large stable of lawyers to file baseless and false sham lawsuits against individuals. These bogus actions are filed by the thousands in federal courts around the country. So numerous and identical are these cases, that terms have been developed to describe them. “Shamigation” is simply engaging in a process of filing large numbers of lawsuits without any regard to their individual merits.

“Spamigation” is related and refers to the automated and near mechanical filing of boilerplate lawsuits, again without any regard to the individual merits of the claims.

Abuse of Courts is Well Recognized

1.7 Recently, federal judges are recognizing these sham lawsuits and the danger they present to innocent individuals and the courts. A federal judge in California noted that ‘the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants’.

1.8 Another federal judge in California noted the lack of merits to the sham litigation, stating, ‘Plaintiffs have presented no facts that this allegation [of copyright infringement] is anything more than speculation’.

1.9 In Maine a federal judge recognized the improper abuse of the courts, stating that ‘it is difficult to ignore the kind of gamesmanship that is going on… these plaintiffs have devised a clever scheme… but it troubles me that they do so with impurity’.

1.10 In Oregon it was specifically recognized that the courts were abused to threaten, harass and intimidate Ms. Andersen. Judge Ashmanskas notes that ‘copyright holders and these plaintiffs specifically should be deterred from prosecuting infringement claims as plaintiffs did in this case’.

1.11 Neither the Noerr-Pennington Doctrine nor state litigation privileges create immunity for these defendants to act with impunity, harming the courts, innocent victims, music consumers and artists. The pre-lawsuit conduct in these Defendants’ common conspiracy is illegal. The anonymous lawsuits and the sham litigation scheme that follow were cleverly devised as a component of the national enterprise of threat, coercion and extortion. As federal courts have noted these cases are objectively baseless, automated, and pursued by the thousands without regard to their individual merits or the harm they cause. This sham litigation enterprise must be stopped. This enterprise harms innocent American citizens, including Tanya Andersen, and deprives the federal judicial process of its legitimacy.

II. RELATED ACTION

A. LR 42 Related Case Notice

1. Identity of Related Case
Atlantic Recording Corp., et al v. Andersen

2.1 Pursuant to Local Rule 42.2 this action is related to Atlantic Recording Corp., et al v. Andersen, No. CV 05-933 AS (D. Or) which was pending before the Honorable Donald C. Ashmanskas in the United States District Court, District of Oregon. After Judge Ashmanskas’ recent retirement this case has been transferred to the Honorable John V. Acosta for the sole remaining purpose of entry of an order and judgment setting the amount of attorneys fees to be paid by plaintiffs in that action.

2. Nature of Related Case

2.2 On August 26, 2005, while Tanya Andersen (”Ms. Anderson” or “Plaintiff”) and daughter, who was then just 8 years old, were sitting down to dinner, a legal process server knocked on her door. When she answered the door, she was served with a sham lawsuit caused to be filed in Oregon U.S. District Court by the RIAA-controlled record companies (the “Big 4″ or “Record Companies”). Ms. Andersen was shocked, afraid, and very distressed. In the sham lawsuit, the RIAA and the recording companies falsely claimed that Ms. Andersen owed hundreds of thousands of dollars as penalties for alleged copyright infringement.

2.3 Ms. Andersen was completely innocent of the charges against her. She answered the false claims and asserted counterclaims seeking damages. While the sham lawsuit against her was pending, Ms. Andersen learned that it was like thousands of other boilerplate suits that were based solely upon illegal, flawed and negligent investigations.

Almost two years later, on the eve of summary judgment, the sham lawsuit was abruptly dismissed with prejudice. At the direction of Judge Donald Ashmanskas, Ms. Andersen’s former counterclaims in that case were dismissed without prejudice so that she could more efficiently pursue them in this action.

III. NATURE OF THE CASE

3.1 This is a class action lawsuit seeking money damages and equitable relief pursuant to FEDERAL RULE OF CIVIL PROCEDURE 23. Plaintiff files this lawsuit on her own behalf and she seeks certification of the action as a nationwide class of Plaintiffs pursuant to Fed. R. Civ. P. 23. This lawsuit seeks to recover on behalf of Plaintiff, and all others similarly situated as class members, compensation for the significant damages caused by these Defendants. In addition, this lawsuit seeks to recover punitive damages, statutory penalties, litigation fees and expenses, and

IV. PARTIES

A. Tanya Andersen

4.1 Plaintiff Tanya Andersen is the single mother of her minor daughter, Kylee Andersen. She and Kylee reside in Beaverton, Oregon.

B. Defendants

1. Defendant Record Companies

4.2 Defendants Atlantic Recording Corporation, a Delaware corporation; Priority Records, LLC, a California limited liability company; Capitol Records, Inc., a Delaware corporation; UMG Recordings, Inc., a Delaware corporation; and BMG Music, a New York general partnership (hereinafter collectively “the Record Companies”) are companies in the business of manufacturing and distributing recorded music. Each of these companies is also a member of the Recording Industry Association of America. The Record Companies filed sham lawsuit against Ms. Andersen, Atlantic Recording Corp., et al v. Andersen, No. CV 05-933 AS

(D. Or.), which remains pending in this court.

2. Defendant RIAA

4.3 Defendant Recording Industry Association of America (hereinafter “RIAA”) claims to be a New York not-for-profit corporation. Its headquarters are located in Washington

D.C. It holds itself out as a “trade group” that directs and controls its member companies in their filing of thousands of sham lawsuits against individuals in federal courts across the country as part of a common scheme. These RIAA-controlled member companies are subsidiaries of 4 major companies that monopolize and control the sale of over 90% of all the music that is commercially distributed in the United States. Since at least 2003 the RIAA has engaged in a coordinated enterprise to pursue a scheme of threatening and intimidating sham litigation in an attempt to maintain its music distribution monopoly.

3. Defendant MediaSentry

4.4 Defendant SafeNet, Inc. f/k/a MediaSentry, Inc. (hereinafter “MediaSentry”), is believed to be a Delaware corporation which maintains its principal place of business in

Maryland. It conspires with the RIAA and its controlled member companies in their coordinated enterprise to pursue a common scheme of threatening and intimidating litigation

against tens of thousands of private U.S. citizens. Specifically, it has devised and continues to conduct illegal, flawed and negligent investigations at the direction of the RIAA and the Record

Companies.

4. Defendant Settlement Support Center

4.5 Defendant Settlement Support Center, LLC was a Washington limited liability company that operated as the debt collection arm of Defendants’ coordinated enterprise to pursue a common scheme of threatening and intimidating litigation.

V. JURISDICTION AND VENUE

5.1 The court has jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331 and 1332.

5.2 This action asserts claims under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq., the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961, et seq., the Hobbs Act, 18 U.S.C. § 1951, the Travel Act, 18 U.S.C. § 1952, in addition to the other causes of action set forth below.

5.3 The parties are citizens of different states. The amount in controversy exceeds $5,000,000.

5.4 Venue is proper under 28 U.S.C. §1391.

VI. CLASS ACTION ALLEGATIONS

6.1 Ms. Andersen as the representative plaintiff brings this class action on behalf of herself and all other individuals similarly situated as members of a proposed class pursuant to Fed. R. Civ. P. 23. This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of those provisions.

6.2 This class action is brought against Defendants for conspiring to create an enterprise for the purpose of perpetuating a “campaign of threat and intimidation”. This class action seeks national injunctive relief and damages to be paid to the following class of plaintiffs: Those who were subjected to illegal and flawed investigations, were named in sham lawsuits or were threatened with suit by Defendants for file-sharing, downloading or other similar activities, who have not engaged in violation of copyright laws.

6.3 The class is comprised of many thousands of individuals who are geographically disbursed, making joinder impracticable. The disposition of the claims of these class members in a single class action will provide substantial benefits to all parties and the Court. There is a well-defined community of interest among members of the class. Ms. Andersen, like all class members, was a target of the above-referenced “campaign of threat and intimidation”.

6.4 Ms. Andersen as the class representative, like all class members, has suffered actual damages as a result of Defendants’ misconduct, and will be required to incur court costs and reasonable and necessary attorneys’ fees in order to recover all sums due as a result of that misconduct.

6.5 There are issues of law and fact common to Ms. Andersen and the proposed class that predominate over any questions that may affect only the individual class members. Proof on these issues includes, but is not limited to, the following:

a. that Defendants acted criminally in “investigating” and pursuing claims against claims members;
b. that Defendants were negligent in their pursuit of the class members;
c. that Defendants defrauded the class members (or conspired to do so);
d. that Defendants made negligent misrepresentations to the class members (or conspired to do so);
e. that Defendants violated and/or conspired to violate the Federal Racketeer Influenced and Corrupt Organizations Act (”RICO”);
f. that Defendants violated and/or conspired to violate the Oregon Racketeer Influenced and Corrupt Organizations Ac (”ORICO”)
g. that Defendants abused and/or conspired to abuse the legal process;
h. that Defendants wrongfully initiated civil proceedings against class members;
i. that Defendants violated and/or conspired to violate the Computer Fraud and Abuse Act;
j. that Defendants committed and/or conspired to commit trespass to chattels against the class members;
k. that Defendants committed and/or conspired to commit invasion of privacy against the class members;
l. that Plaintiff and the class members are entitled to injunctive relief stopping the illegal investigations and Defendants’ criminal enterprise;
m. that Plaintiff and the class members are entitled to compensatory and punitive damages.

6.6 The interests of the class will be fairly and adequately protected. Plaintiff has retained counsel with experience in prosecuting class actions involving wrongful conduct. Furthermore, Plaintiff and the undersigned counsel are committed to vigorously prosecuting this action on behalf of the class and have the financial resources to do so. Neither Plaintiff nor her counsel has any interests adverse to the interests of the class.

6.7 Plaintiff and members of the class have suffered and will continue to suffer harm and damages as a result of the unlawful and wrongful conduct of Defendants. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Absent a class action, most of the members of the class would find the cost of litigating their individual claims prohibitive and would have no effective remedy at law or equity.

6.8 Absent a class action, class members will continue to incur damages and the misconduct of Defendants will continue without remedy. The class treatment of common questions of law and fact is superior to multiple individual actions or piecemeal litigation because it affords the most efficient avenue for full redress of grievances, while simultaneously conserving the resources of the courts and the litigants, and promoting consistency and efficiency of adjudication.

VII. FACTUAL BACKGROUND

A. The National Threat and Sham Litigation Enterprise

7.1 Defendant RIAA characterizes itself as a “trade group”. It is funded by the Big 4, major multinational music recording companies: EMI, Sony BMG, Universal Music and Warner Music Group. Each of these companies has many subsidiary member companies. The RIAA publicly claims that these companies together exercise an actual monopoly and control of over 90% of the sound recordings sold in the United States. The RIAA’s primary function is to act however it decides is necessary to maintain its monopoly. This has become a difficult endeavor since technology advances during the last 10 years have rendered their antiquated model for music production and distribution virtually useless and obsolete. MP3 music storage and players are now over 10 years old. Musicians can now self-publish, self-produce and distribute their art to their fans and customers without the burden of the enormous and unfair payments demanded by the RIAA companies. Music consumers can buy only the music they want. The actions of the RIAA and the Big 4 in their desperate attempt to maintain their monopoly have caused great harm to the courts, consumers and significantly to the artists they purport to represent.

7.2 Defendant MediaSentry is in the business of conducting illegal, flawed and personally invasive private investigations of private citizens in many states throughout the United States for the RIAA and its controlled member companies. MediaSentry has advertised that its services include “investigation” and “litigation support”. It has for years conducted secret investigations of private citizens in violation of the criminal laws of nearly every state in the nation.

7.3 In or about 2002, the RIAA, the Big 4 and MediaSentry conspired to secretly develop a clever scheme to operate a massive threat and sham litigation enterprise targeting private citizens across the United States. Since then, the RIAA and the Big 4 have aggressively acted to prevent disclosure of their secret agreement and other details of their conspiratorial enterprise. Recently it has been discovered that as a part of this common enterprise MediaSentry has conducted many thousands of illegal, flawed and negligent investigations of private American citizens. These illegal and flawed investigations form the sole basis for the enterprise’s pursuit of tens of thousands of threatened and actual sham lawsuits prosecuted throughout the United States.

7.4 Until several weeks ago, MediaSentry publicly claimed to conduct “private investigations” of American citizens. It claims to employ secret methods to enter individual computers to surreptitiously and illegally gather information without authorization or knowledge of the computer owner. In reality and at best, MediaSentry is only capable of identifying an internet protocol (IP) address that may be associated with or assigned to that computer. MediaSentry is paid to provide the IP addresses to the RIAA. The RIAA and the Big 4 then use this illegally obtained information in its public threat and sham litigation enterprise. In June 2003, the RIAA publicly announced that it would begin a campaign that would involve thousands of threats and sham lawsuits against individuals. This criminal conduct continues to date.

B. Criminal Investigations

7.5 The illegality of the private investigations is well known to Defendants. The RIAA was advised in writing years ago that the “private investigations” the enterprise was conducting were illegal. To protect American citizens, nearly every state in the country requires licensing or registration of private investigators. Oregon laws subject unlicensed investigators to both civil and criminal penalties. Reputable investigators are aware of and comply with these licensing laws and regulations. MediaSentry and its investigators are not and have not been licensed to conduct private investigations of private citizens in Oregon or any other state. Recently, the Massachusetts State Police issued to MediaSentry a cease-and-desist notice requiring it to stop its unlicensed investigation activities in the Commonwealth. The state of Michigan has also notified the public that MediaSentry investigations must stop and could be prosecuted as a criminal felony.

7.6 The illegal and flawed private investigations are the fundamental basis of Defendants criminal enterprise that has clogged and abused the federal courts for years with factually baseless, fraudulent and sham lawsuits.

C. Flawed Investigation

7.7 MediaSentry and the RIAA have also known for years that their investigations are fundamentally flawed. On September 14, 2003, an RIAA spokesman admitted in a media report that the investigative process of the criminal enterprise inevitably results in the wrongful implication of innocent individuals. The RIAA has explained that when they fish with a “driftnet” occasionally they will catch a “dolphin”.

7.8 In a March 2004 sworn deposition MediaSentry’s then president admitted to various serious flaws in the investigative scheme forming the basis of Defendants’ criminal enterprise. All Defendants know that these flaws result in misidentification of individuals.Despite this knowledge, Defendants continue to falsely represent to many tens of thousands of people that they have been definitively and personally identified as copyright infringers.

7.9 In recent weeks, an international expert in internet processes and forensics explained under oath that the RIAA investigation process demonstrated “borderline incompetence” and was unprofessional. MediaSentry’s former president also admitted that MediaSentry cannot actually differentiate actual copyrighted recordings from bogus or inoperative files, or decoys.

7.10 Defendants’ cloak the investigation in great secrecy. Many of the technical details of their investigation protocol remain guarded and unknown. What is known is that both MediaSentry and the RIAA’s chief computer consultant have claimed in numerous sworn statements submitted in cases across the country that MediaSentry has in fact invaded the personal computers of many thousands of private American citizens to an extent and to have viewed, manipulated and removed files. MediaSentry and the RIAA have in at least one case removed embarrassing and personal files from an Iraq War veteran’s computer in an effort to humiliate, coerce and harass him.

7.11 The flaws in MediaSentry’s investigations have been well known to Defendants for years. In Brein et al v. UPC Nederland B.V. et al., No. 194741/KGZA-05-462/BL/EV at

4.30-31 (2005), a Dutch court ruled that that MediaSentry’s investigation protocol was insufficient to state a claim for copyright infringement because it was unable to identify an actual individual allegedly engaged in copyright infringement.

7.12 In BMG Canada, Inc. v. John Doe, 2005 FCA 193, (2005), the Canadian Federal Court ruled that the investigation protocol used by MediaSentry is so deficient that the “evidence” gathered fails to establish even a prima facie case of infringement.

7.13 RIAA-controlled member companies have filed and dismissed meritless cases across the country after being forced to admit that they had sued the wrong people. See, e.g., Atlantic v. Zuleta, Case No. 06-CV-1221 (N.D. Ga.); BMG Music v. Thao, Case No. 07-CV-143 (E.D. Wis.); Capitol Records, Inc., et al v. Foster, Case No. Civ. 04-1569-W (W.D. Okla.); Interscope Records v. Leadbetter, Case No. C05-1149-RSL-MJP (W.D. Wash.); Priority Records, LLC v. Chan, Case No. 04-CV-73645-DT (E.D. Mich.); Virgin Records America, Inc. v. Marson, Case No. 05-CV-03201 RGK (C.D. Cal.).

D. Secret Lawsuits

7.14 As part of Defendants’ criminal enterprise, a rotating list of record companies file information farming lawsuits against anonymous “John Doe” parties in order to obtain private IP addresses from internet service providers (ISPs). Because only John Doe defendants are “named”, the targeted individuals are deprived of basic due process and often receive little or no notice or information about the defendants’ scheme to harvest their personal and private information.

7.15 After an individual’s personal and private information is harvested, the anonymous “John Doe” lawsuits are typically immediately dismissed, often before the individuals who have been secretly “sued” have had any meaningful opportunity to appear or to otherwise protect their privacy or participate in the federal judicial process.

7.16 Defendants know that the subpoenaed private information is often flawed and mistaken and that it will be later misused to threaten and harass American citizens. Some ISPs years ago informed their customers of the potential for errors in identifying suspected infringers. After learning that ISPs were disclosing known flaws in its investigations, the RIAA threatened the ISPs and demanded that they immediately stop.

E. Intimidation and Coercion/Extortion

Law Firms

7.17 After the RIAA extracts the ISP customers’ private information in the secret lawsuit, RIAA controlled law firms send threatening and misleading letters containing false allegations and material omissions to individuals whose names and addresses were disclosed.

7.18 These law firm letters are intended to intimidate, confuse, and mislead claiming that the recipient has “already been sued”. At the same time the letters state that the recipients “have not yet been named as a defendant”, in a lawsuit.

7.19 These letters also falsely allege that “[t]he evidence necessary for the record companies to prevail in this action [against an individual] has already been secured.”

7.20 These letters typically demand that the recipient contact the RIAA’s unnamed “representatives” and threaten that if the recipient does not make contact within 10 days of the letter, a federal lawsuit will be filed against them personally.

7.21 The short 10 day notice period is intended to deny the recipient any meaningful opportunity to obtain counsel or to investigate the false assertions contained in the letter and is inconsistent with the pre-suit “breathing room” concept discussed in cases construing the Noerr-Pennington Doctrine.

7.22 These letters never advise the recipient that he or she was the victim of an illegal private investigation. Further, these letters never disclose the known error rate or reality of mistaken identity. The letters also never disclose that the investigations provide no actual proof that a specific individual engaged in any of the alleged acts of copyright infringement. Instead, these letters falsely claim that the RIAA has actual proof necessary to prevail on direct copyright infringement claims against the recipient.

Debt Collectors

7.23 These letters instruct the recipients to contact the Settlement Support Center, the collection agent for the common enterprise. The nature of the Settlement Support Center’s association with the RIAA and other Defendants in their common enterprise is never specifically disclosed in these or other communications.

7.24 Settlement Support Center is paid by the RIAA and involved with the criminal enterprise in coercing payments from individuals identified by MediaSentry’s illegal, flawed and negligent private investigations.

7.25 In their communications, Settlement Support Center representatives never disclosed the fact of the illegal investigation. Nor did they acknowledge the possibility of mistaken identity due to the known flaws inherent in MediaSentry’s private investigation protocol. Moreover, they never disclosed that no proof actually existed of infringement by anyspecific individual actually existed.

7.26 Defendants are aware that Settlement Support Center did not disclose the illegal private investigation, the possibility of misidentification or the inability of the investigation to identify specific individuals.

F. Intimidation, Coercion, Extortion Continue – Sham Lawsuits

7.27 When a targeted individual does not bow to Defendants’ demands for payment, the scheme developed by Defendants’ enterprise requires sham lawsuits be filed against the individual in a federal district court. To date, public estimates are that as many as 30,000 sham lawsuits have been filed. These sham lawsuits are nearly always identical in their claims. Invariably, the allegations are stated vaguely, in reliance upon “information and belief”. Few if any factual allegations are made against a particular real person. These boilerplate sham complaints are filed with little thought or regard, in an automated manner as part of Defendants’ criminal enterprise.

7.28 Nearly all of the sham complaints include claims for infringement of unspecified “additional” copyrighted sound recordings claimed to be owned by or licensed to the named companies’ “affiliate record labels”. These claims are typically unsupported by any proof that the RIAA member companies named as plaintiffs actually own the rights to the works or have standing to bring suit for alleged infringement of these “additional” recordings. These allegations are included to artificially and fraudulently inflate the dollar amount of the damages claimed in order to increase the intimidation of the targeted individual.

7.29 The automated sham complaints also falsely allege that the targeted individual used “an online media distribution system” to “download” or “distribute”, copyrighted recordings. They also falsely claim that this conduct violates the RIAA member companies’”exclusive rights of reproduction and distribution”. In truth, the member companies typically have neither evidence of downloading, nor evidence of “distribution”.

7.30 The Record Companies monopoly and the criminal enterprise that Defendants’ developed to maintain it harms artists (including songwriters and musicians), the musicconsuming public, and the many individuals like Tanya Andersen victimized by abusive sham litigation. Defendants’ illegal enterprise also unfairly clogs the courts at great cost to American citizens.

VIII. The Campaign of Intimidation Against Tanya Andersen

A. Enterprise Engaged in Mail Fraud

8.1 In February 2005, Tanya Andersen received a letter from the Los Angeles, California law firm Mitchell Silverberg & Knupp, LLP on behalf of certain undisclosed “record companies”. The letter falsely claimed that Ms. Andersen had illegally downloaded music, infringed undisclosed copyrights and that “[t]he evidence necessary for the record companies to prevail in this action has already been secured.”

B. Enterprise Engaged in Wire Fraud

8.2 After receiving this letter, Ms. Andersen immediately contacted Defendants and their agent, Settlement Support Center. She explained that their claims were in error and that she had never downloaded or shared music or used any file-sharing program. She told them that she did not even know how to use such a program. According to the Defendants’ scheme, Settlement Support Center repeated Defendants’ joint threat that unless she immediately paid Settlement Support Center $4,000-5,000 Defendants would ruin her financially. Settlement Support Center also falsely asserted that Ms. Andersen had been “viewed” engaging in infringing acts. Defendants then knew or should have known that Ms. Andersen was innocent.

8.3 During telephone conversations in Feburary and March 2005, an employee of Settlement Support Center actually admitted to Ms. Andersen that he believed that she had not infringed any copyrights. He explained, however, that Defendants would not quit their attempts to force payment from her because to do so would encourage other people to defend themselves. He stated that Ms. Andersen could pay thousands of dollars to defend herself against a federal lawsuit or take the less expensive option of “settling” with Defendants.

8.4 Ms. Andersen wrote to Settlement Support Center again explaining her innocence. She even invited an inspection of her computer to prove that the claims made against her were false or in error.

8.5 Instead of inspecting her computer, the RIAA and its controlled member companies caused suit to be filed against Ms. Andersen on June 24, 2005.

C. Enterprise Identified ‘Gotenkito’

8.6 The Defendant Record Companies later falsely claimed that MediaSentry had caught her sharing files online at 4:20 A.M. PST, on May 20, 2004, and identified her as “gotenkito@kazaa.”

8.7 Ms. Andersen explained that she did not know “gotenkito” or anyone else who used that name. Ms. Andersen also explained that she was not awake at 4:20 AM on May 20, 2004. She again explained that her computer was never used to share files online. Ms. Andersen offered this information once again in a sworn declaration she provided in October 2006.

8.8 Defendants knew that Ms. Andersen was not engaged in copyright infringement. In fact, a simple 2-minute search for “gotenkito” on the Google search engine in March 2007 confirmed that a young man in Everett, Washington had been using the name gotenkito on various internet sites. This man’s MySpace webpage, “Chad’s Wacky Life Stories”, described his interest in computers and music and even admitted downloading copyrighted materials: “Doe’s [sic] anyone else watch Drawn Together’ That show is so funny. I downloaded about 14 episodes and i can’t stop watching them.”

8.9 In an attempt to end Defendants’ persecution of her, in March 2007, Ms. Andersen provided the man’s name, location, and phone number to the Defendant Record Companies. Along with everything else she had done, she hoped this would result in their admitting that she had been misidentified and falsely accused and that the claims against her would be dismissed.

8.10 Ms. Andersen later learned that lawyers for the RIAA and the Record Companies actually already knew of the man. In a September 2006 email, one RIAA lawyer had asked whether Ms. Andersen “had any connection with a 30-something year old man named Chad”. She did not know any such person. No later than April 2007, the RIAA lawyer had made contact with this man. Despite having more substantial evidence to support claims against him, the Record Companies and their lawyers chose to persist in their vexatious campaign against Ms. Andersen instead.

D. Enterprise Defamed Ms. Andersen

8.11 Instead of dismissing their false claims, the Record Companies persisted in their malicious prosecution of Plaintiff. They publicly libeled her with demeaning and repulsive accusations. In connection with the June 24, 2005 public filing of their complaint, they claimed that Plaintiff stole and possessed songs with titles such as “Shake That Ass Bitch”, “Dope Nose”, “Die Motherfucker Die”, “Bullet in the Head”, “Fuck y’all Hoes”, “Nigger Fucker”, and “I Stab People”. From June 24, 2005 to the present, in various published litigation documents, the Record Companies and the RIAA have continuously and publicly asserted that contents of their original accusations were accurate and true. In a massive public relations blitz launched on September 26, 2002 and described by one RIAA member executive as “propaganda”, the RIAA portrayed those accused of copyright infringement as criminals and unsavory “pirates”, “thieves”, and “shoplifters”. During the time that the RIAA and the Record Companies were specifically accusing Plaintiff of infringement, these additional disparaging statements and innuendo appeared in major newspapers, were continuously broadcast on national television and radio, and were included in trailers before feature films in theaters nationwide. More recently, on a September 17, 2007 nationwide broadcast of a National Public Radio program (”Marketplace”) RIAA Chairman and CEO Mitch Bainwol accused Plaintiff of lying when he stated to millions of listeners: “I would remind you that folks, when they have a legal dispute, often can be creative with the way they portray the facts.”

8.12 Ms. Andersen remains understandably offended and outraged by Defendants conduct. She has no interest in the violent, profane, misogynistic, and racist music that the RIAA and its controlled member companies monopolize. Defendants knew that Ms. Andersen listens to only country music and soft rock. For years she had avidly purchased music from RIAA member companies’ mail order CD clubs.

E. Enterprise Knew About Ms. Andersen’s Health Problems

8.13 Defendants were also aware that their false claims and the federal lawsuit were significantly damaging to Ms. Andersen. In May 2004, for health reasons Ms. Andersen had been forced to leave her position as a case manager at the Department of Justice. At the time she was targeted by Defendants, she was surviving on disability benefits for painful physical illness, emotional and psychological problems.

8.14 Before the lawsuit, Plaintiff had hoped to return to work, but her psychological and physical symptoms seriously worsened due to Defendants’ malicious and outrageous conduct. Rather than completing a return to work program she had to seek additional medical and psychiatric care. Defendants have been aware of the deleterious effect their acts have had on Ms. Andersen’s physical and psychological conditions since March 6, 2005, when she wrote to Settlement Support Center advising of the harm she was suffering.

8.15 Defendants refused to undertake a reasonable investigation into the propriety of their claims against Ms. Andersen. They repeatedly refused to even inspect her computer hard drive. After a court order required it and the inspection was finally done in September and October 2006, the RIAA’s own expert determined that Ms. Andersen’s computer had not been used to infringe copyrights. No files or remnants of any files allegedly containing copies of the Record Companies’ copyrighted recordings were ever found on her computer.

8.16 Even then and despite their own experts’ determination and all the other proof of her innocence, the RIAA and its member companies refused Ms. Andersen’s renewed pleas in December 2006 that the litigation and persecution of her stop.

8.17 Rather than ending their abuse of her, in January 2007, RIAA-controlled lawyers renewed their threats: They would not dismiss their false claims unless Ms. Andersen paid them some undisclosed amount of money. They wanted it to appear publicly that they had prevailed.

F. Enterprise Stepped Up Harassment

8.18 When Ms. Andersen declined to pay them, Defendants stepped up their intimidation. In January 2007, lawyers for the RIAA and the Record Companies demanded the deposition of Ms. Andersen’s 10 year-old daughter Kylee. The demand came after the computer inspection and other evidence showed that Ms. Andersen’s computer has not been used for infringement; the deposition was totally unnecessary. Ms. Andersen remained outraged. The RIAA and its agents knew that Ms. Andersen was very concerned about her daughter and the threat of taking her deposition was causing Ms. Andersen a great deal of distress.

8.19 Knowing of her distress, the RIAA and its agents even attempted to directly contact Kylee. In February 2007, a paralegal from the law firm retained by the RIAA and the Record Companies called Ms. Andersen’s apartment building looking for Kylee. In April 2007, phone calls were also made to Kylee’s former elementary school under false pretenses. The voice of the woman on the phone claimed to be Kylee’s grandma inquiring as to her attendance. Ms. Andersen learned of these tactics and was even more frightened and distressed.

8.20 Later, and not until nearly two years after their reckless suit was filed, RIAA lawyers offered to voluntarily dismiss the claims against Ms. Andersen, but only if she abandoned her legal counterclaims against them. They also emphasized that if she did not abandon her legal rights, they would continue to persecute her and her young daughter, and in March 2007 again demanded to interrogate and confront her little girl at the offices of RIAA lawyers. Despite her distress, Ms. Andersen failed to give in. On March 27, 2007, the court even was compelled to enter an order protecting Kylee and Ms. Andersen from the aggressive facial confrontation threatened by the RIAA and its agents.

8.21 In April and May 2007, the Record Companies’ lawyer conducted the deposition of Kylee, as well as several other friends and relatives of Ms. Andersen. Again, given the computer inspection and the other exculpatory evidence the Record Companies already had, these depositions were entirely unnecessary for purposes of supporting plaintiffs’ baseless allegations of infringement. Instead, the lawyers for the Record Companies carried them out so as to apply further financial and psychological pressure on Ms. Andersen so that she would abandon her counterclaims.

G. Enterprise Was Caught — Cuts and Runs

8.22 In May 2007, Ms. Andersen was ultimately able to file a motion for summary judgment. This motion required the Defendant Record Companies to submit proof of their claims. The Record Companies repeatedly delayed the time to submit proof they knew never existed. They made one last demand that Ms. Andersen dismiss her counterclaims. When she again refused, the Record Companies’ had no option and were forced to finally dismiss their case with prejudice on June 1, 2007. Like many others, Ms Andersen had been subjected to the Defendants’ abuse for over two years.

8.23 On September 21, 2007, the U.S. Magistrate Judge who had presided over the case found that Ms. Andersen was entitled to an award of attorney’s fees incurred in defending the Record Companies’ claims. In its findings, the court concluded that throughout the pendency of this action the Record Companies ‘unreasonably rejected or sought to suppress evidence to the extent it tended to exonerate’ Ms. Andersen, and ‘exerted a significant amount of control over the course of discovery’. The court also concluded that the Record Companies claims were objectively unreasonable and improperly motivated, explaining that ‘[w]hatever [the Record Companies’] reasons for the manner in which they have prosecuted this case, it does not appear to be justified as a reasonable exploration of the boundaries of copyright law.’ On January 16, 2008, the Senior U.S. District Judge adopted the Magistrate Judge’s Findings and Recommendation and granted Ms. Andersen her attorney’s fees.

H. Enterprise of ‘Litigation’ Is Total Sham

8.24 Although certain of Defendants’ activities were ostensibly undertaken for purposes of litigation against Plaintiff and others similarly situated, in reality they were conducted to promote generalized public fear and intimidation in order to further the common business interests of the RIAA, the Record Companies, and other RIAA-member companies. The investigation, the threats of litigation, and the litigation itself were all undertaken without an objectively reasonable basis to support the particular claims threatened and/or alleged against Plaintiff and others similarly situated. The investigation, the threats of litigation, and the litigation in Plaintiff’s case, and in the cases of similarly situated class members, were all undertaken without regard to the merits of each particular case. These activities were instead performed in a generic manner as part of Defendants’ broader, coordinated racketeering enterprise. These activities are a “sham” as defined by the U.S. Supreme Court in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) and subsequent cases. As such, Defendants’ activities are not entitled to immunity under federal and state law. 8.25 Defendants’ actions toward Ms. Anderson are typical of their actions toward the other members of the class.

IX. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF NEGLIGENCE / NEGLIGENCE PER SE

Oregon Law

All Defendants

A. Negligence Per Se

9.1 Plaintiff realleges and incorporates herein by reference each of the allegations set forth above. Plaintiff makes this claim against all Defendants, with allegations particular to each Defendant set forth below. Each defendant is presumed negligent and each is negligent per se as each devised and/or participated in the common scheme and enterprises which had at its foundation an illegal private investigation conducted in violation of ORS 703.405 which is a misdemeanor crime. ORS 703.993. The purpose of these laws is to protect the public including Ms. Andersen from the very harm which defendants caused her to suffer. Virtually every state in the nation has laws regulating private investigations and the doctrine of negligence per se applies to all similarly situated class members.

B. RIAA Negligence / Negligence Per Se

9.2 The RIAA publicly claims to have special expertise in conducting investigations, influencing politicians, and has experience in filing sham lawsuits against thousands of private American citizens. In fact, the RIAA’s president, Cary Sherman, is a 1971 graduate of Harvard Law School. He was formally senior partner in one of this country’s best known law firms. The RIAA publicly proclaims that Mr. Sherman is “one of the top copyright attorneys in the country.” Mr. Sherman and the RIAA know what is legally permissible, what is criminal and what is a sham.

9.3 The RIAA owed a duty to Plaintiff and the class members to act legally, reasonably and responsibly to avoid foreseeable harm to others. This duty arose when it decided to engage in criminal, invasive and personally threatening activities which it knew or should have known would result in foreseeable, improper harm to Plaintiff and the class. These activities, which are described in detail above and herein below, include the RIAA’s role in designing, implementing, overseeing and controlling the criminal and flawed private investigation scheme which improperly misidentified Plaintiff and the class members as copyright infringers, causing harm to Plaintiff and the class when they were later subjected to improper threats, coercion, extortion and sham litigation as a result.

9.4 Because of their illegal conduct, specialized knowledge and expertise in the realm of copyright law and computer technology and because they provided legal advice (albeit false and misleading) to Ms. Andersen and other class members, the RIAA owed a heightened duty to Plaintiff and the class to avoid foreseeable harm to them. As a result of the RIAA’s criminal activity and active deceit as well as its vastly superior resources and sophistication, Ms. Andersen was understandably intimidated and without reasonable ability to understand and evaluate the complex false accusations of copyright infringement made against her. The extraordinary financial leverage and procedural control exercised by Defendants through their common enterprise including their investigation, threat and sham litigation campaign left Ms. Andersen no choice but to rely upon at least some of the information and legal advice provided by the RIAA and its agents. These unusual factual circumstances and the very significant economic disparity created a heightened duty for the RIAA to avoid harm to Ms. Andersen and other similarly situated class members.

9.5 In addition to its negligence per se and its heightened duty, the RIAA owed Plaintiff and the class a duty, common to all, to avoid harm based on general negligence principles of the foresee-ability of harm under applicable common law.

9.6 Despite its specialized knowledge, the RIAA acted negligently in one or more of the following ways.

a. When it conspired and coordinated with MediaSentry to devise a criminal scheme and common enterprise to conduct illegal private investigations of Plaintiff and other class members that it knew were flawed and prone to erroneously identify innocent private citizens.
b. When it retained MediaSentry to conduct illegal private investigation of Plaintiff and other class members’ personal information when it knew or should have known that MediaSentry was not licensed to conduct private investigations.
c. When it conspired and coordinated with MediaSentry to devise a criminal scheme and common enterprise to conduct private investigations of Plaintiff and other class members that it knew or should have known were flawed in that they were not capable of identifying the individuals who actually engaged in alleged copyright infringement.
d. When it continued to use the illegal and flawed investigations in its enterprise of threatening and intimidating litigation against Plaintiff and other members of the class even after repeated reports of its illegality and flaws in cases across the country.
e. When it sent communications to Plaintiff and other class members which failed to disclose the illegality of the investigation, the possibility of misidentification, and the true nature of “evidence” against them which had “already been secured”.
f. When it directed and controlled the Record Companies in threatening, instigating, and/or prosecuting baseless sham litigation against Plaintiff and other members of the class.
g. When it failed to properly investigate the true identity of “gotenkito”, both before first threatening Plaintiff, and after his true identity was supplied to the RIAA by her and was otherwise known to the RIAA.

9.7 The RIAA’s negligent conduct described above proximately caused direct damages to Plaintiff and all others similarly situated in an amount to be proven at trial.

C. MediaSentry Negligence / Negligence Per Se

9.8 MediaSentry owed a duty to Ms. Andersen and the class members to act reasonably, responsibly, and to avoid foreseeable harm to them. This duty arose when it decided to engage in invasive and personally threatening activities which it knew or should have known would result in foreseeable, improper harm to Plaintiff and the class. These activities, which are described in detail above and herein, include MediaSentry’s role in designing, implementing, overseeing and controlling the flawed and illegal private investigation scheme which improperly misidentified Ms. Andersen and the class members as copyright infringers.

9.9 Because of its claimed knowledge and expertise in computer technology, and investigation, MediaSentry owed a heightened duty to Plaintiff and the class to avoid foreseeable harm to them. As a result of MediaSentry’s vastly superior knowledge, resources and sophistication, Plaintiff was placed in a position of reliance on MediaSentry with respect to understanding and evaluating the nature of MediaSentry’s investigation and the nature of the alleged “evidence” produced by the investigation. Moreover, the extraordinary financial leverage and procedural control exercised by Defendants through the operation of their illegal investigation, threat and sham litigation enterprise left Ms. Andersen no choice but to rely upon some of the representations of the RIAA and its common agents, including MediaSentry. These unusual factual circumstances gave rise to a special relationship and a heightened duty owed by MediaSentry to Plaintiff and other class members.

9.10 In addition to negligence per se and this heightened duty, MediaSentry owed Plaintiff and the class a duty to avoid harm based on general negligence principles of foreseeability of harm under applicable common law.

9.11 MediaSentry acted negligently in one or more of the following ways.

a. When it failed to comply with private investigation licensing laws in Oregon and many other states.
b. When it conspired and coordinated with the RIAA to devise a scheme and common enterprise to conduct private investigations of Plaintiff and other class members that it knew or should have known were flawed in that they could not identify the individuals who actually engaged in alleged copyright infringement.
c. When it conspired and coordinated with the RIAA to operate an illegal and flawed private investigation scheme against Plaintiff and other members of the class.
d. When it failed to properly investigate the true identity of “gotenkito”, both before first threatening Plaintiff, and after his true identity was supplied to Defendants by her and was otherwise known to defendants.

9.12 MediaSentry’s negligent conduct described above proximately caused direct damages to Plaintiff and all others similarly situated in an amount to be proven at trial.

D. Record Companies Negligence / Negligence Per Se

9.13 The Record Companies owed a duty to Plaintiff and the class members to act reasonably, responsibly, and legally to avoid foreseeable harm to them. This duty arose when the Record Companies conspired with the RIAA and Settlement Support Center and engaged in criminal, invasive and personally threatening activities which it knew or should have known would result in foreseeable, improper harm to Plaintiff and the class. These activities, which are described in detail above and herein, include the Record Companies’ threatening, instigating, and/or prosecuting baseless sham litigation against Plaintiff and other members of the class.

9.14 In view of their specialized knowledge and expertise in the realm of copyright law and computer technology and because they provided legal advice (albeit false and misleading) to Ms. Andersen and other class members, the Record Companies owed a heightened duty to Ms. Andersen and the class to avoid foreseeable harm to them. As a result of the Record Companies’ vastly superior knowledge, resources and sophistication, Plaintiff was placed in a position of reliance on the Records Companies with respect to understanding and evaluating the complex accusations of copyright infringement made by the RIAA and the Record Companies. Moreover, the extraordinary financial leverage and procedural control exercised by Defendants through their joint operation of their investigation, threat and sham litigation campaign left Plaintiff no choice but to rely upon information provided by the Record Companies and their agents. These unusual factual circumstances gave rise to a special relationship and a heightened duty to and Plaintiff and other class members.

9.15 In addition to their negligence per se and this heightened duty the Record Companies owed Ms. Andersen and the class a duty to avoid harm based on general negligence principles of foreseeability under applicable common law.

9.16 The Record Companies acted negligently in one or more of the following ways.

a. When they directed false and coercive communications to Ms. Andersen and other class members which failed to disclose the illegality of the investigation, the possibility of misidentification, and the true nature of “evidence” against them which had “already been secured”.
b. When they relied on criminal and flawed information collected and provided by Defendants RIAA and MediaSentry in filing and pursuing lawsuits against Plaintiff and other members of the class.
c. When they failed to properly investigate the true identity of “gotenkito”, both before first threatening Plaintiff, and after his true identity was supplied to them by her and was otherwise known to them.

9.17 The defendant Record Companies’ negligent conduct described above proximately caused direct damages to Plaintiff and all others similarly situated in an amount to be proven at trial.

E. Settlement Support Center Negligence

9.18 Settlement Support Center owed a duty to Plaintiff and the class members to act reasonably, responsibly, and legally to avoid foreseeable harm to them.

9.19 Settlement Support Center acted negligently in one or more of the following ways.

a. It made false and misleading oral and/or written communications to Plaintiff and other class members which failed to disclose the illegality of the investigation, the possibility of misidentification, and the true nature of “evidence” against them which had “already been secured”.
b. It relied on flawed information illegally collected and provided by Defendants RIAA and MediaSentry in communicating with Plaintiff and the class in attempt to coerce payments.

9.20 Settlement Support Center’s negligent conduct described above proximately caused direct damages to Plaintiff and all others similarly situated in an amount to be proven at trial.

SECOND CLAIM FOR RELIEF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Oregon law

Defendants RIAA, the Record Companies and Settlement Support Center

9.21 Plaintiff realleges and incorporates herein by reference each of the allegations set forth above. Plaintiff makes this claim against the RIAA, the Record Companies, and Settlement Support Center, with allegations specific to each Defendant set forth below.

A. Joint Conduct of the RIAA and the Record Companies

9.22 At all relevant times, the RIAA and the Record Companies were aware that their threats of a sham lawsuit for massive damages that would financially ruin Plaintiff caused her great distress and significant damages. In May 2004, for health reasons Plaintiff had been forced to leave her position as a case manager at the Department of Justice. At the time she was targeted harassed and sued by the RIAA and the Record Companies, she was totally disabled by painful physical illness and serious emotional and psychological problems. She was surviving on state disability benefits.

9.23 Before the sham lawsuit was filed against her, Ms. Andersen hoped to return to work. Her psychological and physical symptoms seriously worsened due to the harassment, threats and malicious and outrageous conduct of the RIAA and the Record Companies. Rather than completing a return to work program she was forced to seek additional medical and psychiatric care. The Defendants were aware of the significant harm their outrageous threats and sham lawsuit were causing Ms. Andersen. On March 6, 2005, she wrote to the Settlement Support Center and explained the harm she was suffering. After the sham lawsuit was filed, Ms. Andersen repeatedly advised Defendants of the ongoing severe emotional distress she was suffering as a result of their outrageous conduct.

9.24 The RIAA and the Record Companies were intent on causing Ms. Andersen as much harm as long as possible. Although an investigation of Plaintiff’s computer would have cleared Ms. Andersen, Defendants repeatedly refused Ms. Andersen’s offers to inspect her computer hard drive. More than a year after the sham lawsuit was filed the court required an inspection. The RIAA and the Record Companies completed this inspection in September and October 2006 but then willfully refused to disclose the results of the inspection. When the court insisted that the results be disclosed, the RIAA’s own expert reported that no evidence existed that Ms. Andersen’s computer had been used to infringe copyrights. Still, Defendants continued to harass Ms. Andersen. They even falsely claimed without any evidence that she had somehow altered her computer and had lied to the court.

9.25 This conduct was especially outrageous because, as was later discovered, the RIAA and the Record Companies had by then secretly identified the real individual using the username “gotenkito”. They knew that this man had admitted to downloading copyrighted materials on the internet. Months later, Plaintiff independently discovered this man and supplied his contact information to the RIAA and the Record Companies. Outrageously, even then they refused to investigate or pursue him. Instead they continued their vexatious sham litigation against Ms. Andersen much to her escalating harm.

9.26 The RIAA and the Record Companies outrageously refused to dismiss their claims and continued to harm Ms. Andersen because they believed that admitting their errors would only encourage other innocent victims to defend themselves. Their decision to continue the litigation in the face of all of the evidence exculpating Ms. Andersen was specifically intended to aggravate her severe emotional distress in an attempt to make her abandon her defense.

9.27 Instead of dismissing their false claims, the RIAA and Record Companies escalated their intimidation, malicious prosecution and harassment of Ms. Andersen. They publicly defamed Ms. Andersen with demeaning and repulsive accusations. They repeatedly and publicly claimed that she stole and possessed songs with titles such as “Shake that Ass Bitch”, “Dope Nose”, “Die Motherfucker Die”, “Bullet in the Head”, “Fuck y’all Hoes”, “Nigger Fucker”, and “I Stab People”. In a massive public relations blitz launched on September 26, 2002 (and described by one RIAA member executive as “propaganda”), the RIAA portrayed Ms. Andersen and others as criminals and unsavory “pirates”, “thieves”, and “shoplifters”. From June 24, 2005 to the present, in various published documents, the Record Companies and the RIAA have continuously and publicly accused Ms. Andersen of committing copyright infringement punishable by criminal conviction and jail. These disparaging statements and innuendo also appeared in major newspapers, were continuously broadcast on national television and radio, and were included in trailers before feature films in theaters nationwide. It was with this background and in this environment that the RIAA and the record companies publicly accused Ms. Andersen of being a liar and a cheat. After Ms. Andersen had been judicially exonerated of all liability, on September 17, 2007 in a nationwide broadcast of a National Public Radio program (”Marketplace”) RIAA Chairman and CEO Mitch Bainwol accused Ms. Andersen of lying. Even after the Record Companies’ sham lawsuit had been dismissed he told millions of listeners that Ms. Andersen could not be believed because she was like other infringers: “when they have a legal dispute, often can be creative with the way they portray the facts.”

9.28 Each time Ms. Andersen refused to give in to the RIAA and the Record Companies’ demands they escalated their threats and harassment. In late January 2007 lawyers for the RIAA and the Record Companies demanded the deposition of Ms. Andersen’s then 10 year-old daughter Kylee. This demand was made after the computer inspection demonstrated her innocence and after the real “gotenkito” was known to them. The RIAA, the record companies and its agents knew that Ms. Andersen was very distressed about her daughter and the insistence on taking her deposition was intended to cause her even greater severe emotional distress.

9.29 Knowing of her distress, the RIAA and the record companies even tried to contact Kylee directly. Under the guise of serving a subpoena on a 10 year-old girl, in February 2007, a paralegal from one of the RIAA and the Record Companies law firms called Ms. Andersen’s apartment building trying to locate or talk to Kylee. This attempt at direct contact was completely unnecessary and outrageous. The customary practice would have been to simply provide notice to Plaintiff’s counsel. This contact was intended solely to cause Ms. Andersen even more distress and suffering.

9.30 In April 2007, phone calls were also made to Kylee’s former elementary school under false pretenses. The voice of the woman on the phone claimed to be Kylee’s grandma inquiring as to her attendance there. Plaintiff learned of these tactics and was even more frightened and distressed.

9.31 Later, and not until nearly two years after their sham lawsuit was filed, RIAA lawyers offered to voluntarily dismiss the Record Companies’ claims against Ms. Andersen, but only if she abandoned her legal counterclaims against them. They also emphasized that if she did not abandon her legal rights, they would continue to threaten, harass and persecute her and her young daughter. In March of 2007 when she refused to abandon her claim, the RIAA and the records companies again demanded to confront her little girl and interrogate her at the offices of RIAA lawyers. Because of the RIAA’s unrelenting harassment, the court was compelled on March 27, 2007 to enter an order protecting Kylee from the aggressive threats of confrontation.

9.32 In April and May 2007, the RIAA and the Record Companies insisted not only on taking Kylee’s deposition but also demanded unnecessary depositions of Ms. Andersen’s friends and relatives. These depositions were intended only as further harassment because the RIAA knew Ms. Andersen was innocent. The RIAA and the Record Companies continued to threaten financial, psychological and emotional harm to cause Ms. Andersen to abandon her counterclaims. This course of conduct was outrageous in the extreme and caused Ms. Andersen further severe emotional distress.

9.33 Judge Donald Ashmanskas, who was the judge familiar to the case, concluded in his September 21, 2007 findings that the RIAA and Record Companies’ sham lawsuit had been objectively unreasonable and improperly motivated. Specifically, the court stated: Plaintiffs’ failure to contact a third party, who potentially was the actual infringer, until April 2007, as well as their position that his denials were credible, while defendant’s were not, are also relevant to the third Fogerty factor - objective unreasonableness. Without applying the benefit of hindsight, these facts indicate that, in significant ways, plaintiffs did not conduct themselves in an objectively reasonable manner, i.e., in a manner to be expected from a reasonable copyright holder pursuing relief from a party it believed to be infringing.

…

An objectively reasonable copyright holder would seek to hold liable and deter the person who actually violated the Copyright Act.

…

Whatever [the Record Companies’] reasons for the manner in which they have prosecuted this case, it does not appear to be justified as a reasonable exploration of the boundaries of copyright law. In January 2008, the Senior U.S. District Judge adopted the Magistrate Judge’s findings.

9.34 The malicious and outrageous conduct of the RIAA and the Record Companies exceeded all bounds of socially tolerable behavior. This conduct caused severe emotional distress that proximately resulted in damages to Plaintiff and other members of the class in an amount to be specifically proven at trial.

B. Intentional Infliction of Emotional Distress by Settlement Support Center

9.35 At all relevant times, Settlement Support Center was aware its coercive, false and misleading statements and threats caused Plaintiff severe emotional distress. In May 2004, for health reasons Ms. Andersen had been forced to leave her position as a case manager at the Department of Justice. At the time she was targeted by Settlement Support Center, she was surviving on disability benefits for painful physical illness, emotional and psychological problems.

9.36 Before the threats, Ms. Andersen had hoped to return to work, but her psychological and physical symptoms seriously worsened due to the malicious and outrageous conduct of Settlement Support Center. Rather than completing a return to work program she had to seek additional medical and psychiatric care. Settlement Support Center has been aware of the deleterious effect its acts have had on Plaintiff’s physical and psychological conditions since March 6, 2005, when she wrote to Settlement Support Center advising of the harm she was suffering.

9.37 In several telephone conversations occurring in February and March 2005, Settlement Support Center representatives made false statements and/or misrepresentations that Defendants already possessed damaging, particularized evidence that would be used successfully in a lawsuit that would ruin her financially. Settlement Support Center made the false statement and/or misrepresentation that unless Ms. Andersen immediately paid $4,000- 5,000, Defendants would prevail in a lawsuit based upon this same asserted evidence. Settlement Support Center also made the false statement and/or misrepresentation that Ms. Andersen had been “viewed” engaging in infringing acts.

9.38 Settlement Support Center knew that the investigation protocol employed could not identify any individual who had committed any of the alleged acts of infringement; it knew that that there was no evidence that the files allegedly detected were actual copies of sound recordings for which they allegedly had copyrights; and it knew that that the investigation protocol had resulted in multiple mistaken identifications in the past.

9.39 In its conversations with Ms. Andersen, Settlement Support Center withheld the material fact that it did not know who engaged in any infringing activities, and it did not know whether any of the thousands of file names listed in the screen shots contained any copyrighted sound recordings whatsoever. Settlement Support Center failed to disclose to Ms. Andersen the material fact that she had been misidentified, and withheld from her the true nature of the “evidence” against her. Ms. Andersen had no access to the information that Settlement Support Center had. Ms. Andersen had no way of knowing that Settlement Support Center was withholding and omitting material information from her.

9.40 Settlement Support Center made these knowingly false threats of financial ruin while knowing that it was causing her severe emotional distress.

9.41 The malicious and outrageous conduct of Settlement Support Center exceeded all bounds of socially tolerable behavior. This conduct caused severe emotional distress that proximately resulted in damages to Ms. Andersen and other members of the class in an amount to be specifically proven at trial.

THIRD CLAIM FOR RELIEF FEDERAL RACKETEERING INFLUENCED CLAIMS AND CORRUPT ORGANIZATION ACT 18 U.S.C. § 1962(c)

All Defendants

9.42 Plaintiff realleges and incorporates herein by reference each of the allegations set forth above. Plaintiff makes this claim against all Defendants.

9.43 The Racketeer Influenced and Corrupt Organization Act (RICO) prohibits companies from engaging in organized racketeering or criminal activities. 18 U.S.C. § 1961, et seq. RICO provides that it is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt. 18 U.S.C. § 1962 (c).

A. Enterprise

9.44 As detailed above and herein, the RIAA, MediaSentry, the Record Companies, and Settlement Support Center each worked in association with each other for the purpose of creating and operating an enterprise to wage a public threat and intimidation campaign targeting, in part, Plaintiff and other members of the class, in an effort to maintain control of and monopolize the distribution of music recordings.

9.45 Pursuant to a secret agreement reached in or about 2002, the RIAA, its controlled member companies and MediaSentry conspired to develop a massive threat and sham litigation enterprise targeting private citizens across the United States. In June 2003, the RIAA publicly announced that it would begin a campaign that would involve thousands of threats and lawsuits against individuals.

9.46 As a part of the enterprise MediaSentry has for years conducted illegal, flawed and negligent investigations of many thousands of private United States citizens. These illegal investigations were and are used as the sole basis for tens of thousands of threatened and actual lawsuits against individuals throughout the U.S.

9.47 Defendants have known for years that their investigation protocol is fundamentally flawed and illegal. The protocol is subject to several known technical flaws that result in misidentification. However, even if these technical flaws are not implicated in any individual case, the protocol simply cannot identify those individuals who are later subject to improper threats, coercion, and sham lawsuits in federal district court. MediaSentry’s investigations are also performed in violation of private investigation licensing requirements applicable in Oregon and most other states.

9.48 In communications with Ms. Andersen and others similarly situated, the RIAA, the Record Companies, and Settlement Support Center have misrepresented the true nature of these illegal, flawed private investigations and the “evidence” gained therefrom in an attempt to coerce undeserved payments from targeted individuals. As exemplified in the February 2, 2005 letter to Plaintiff, lawyers for the RIAA the Record Companies have repeatedly made false representations and material omissions in asserting that its investigation had produced “evidence” which personally and conclusively identified the targeted individual as the party responsible for alleged infringing acts. As exemplified in the February and March 2005 telephone conversations between Ms. Andersen and Settlement Support Center, Settlement Support Center repeated the false representations and material omissions concerning the investigation and the “evidence” gained, and has also admitted that Defendants intended to coerce payment from Ms. Andersen and others similarly situated despite the admitted innocence of the targeted individuals.

9.49 Although certain of Defendants’ activities were ostensibly undertaken for purposes of particular litigation against Ms. Andersen and others similarly situated, in reality they were conducted to promote generalized public fear and intimidation in order to further the common business interests of the RIAA, the Record Companies, and other RIAA-member companies. The investigation, the threats of litigation, and the litigation itself were all undertaken without an objectively reasonable basis to support the particular claims threatened and/or alleged against Ms. Andersen and others similarly situated. The illegal investigation, the threats of litigation, and the sham litigation were all undertaken without regard to the merits of any particular case. These activities were instead performed in an automated manner as part of Defendants’ broader, coordinated racketeering enterprise. These activities are a “sham” as defined by the U.S. Supreme Court in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) and subsequent cases. As such, Defendants’ activities are not entitled to immunity under federal and state law.

9.50 The immediate aim of each of these activities was to threaten, intimidate and coerce Plaintiff and other wrongfully targeted individuals into paying the Record Companies and the RIAA thousands of dollars. The ultimate goal was to further the business interests of the RIAA, the Record Companies, and other RIAA-member companies by maintaining and preserving as long as possible their monopolistic control over the national market for the distribution of sound recordings.

9.51 Defendants’ association constitutes an “enterprise” as defined in 18 U.S.C. § 1961(4).

9.52 While each of the Defendants participated in the common enterprise, they also have an existence separate and distinct from the enterprise.

9.53 Defendants are each “persons” as defined in 18 U.S.C. § 1961(3).

B. Predicate Acts

9.54 Defendants’ acts in furtherance of their racketeering enterprise include severa predicate acts that constitute “racketeering activity” for purposes of 18 U.S.C. § 1961(1). These predicate acts, which are detailed above and herein, include mail fraud, wire fraud, violations of the Hobbs Act, interstate commerce in aid of unlawful activity, and other acts involving extortion that are chargeable under state law.

Mail Fraud

9.55 Defendants formed a common scheme and enterprise to defraud Plaintiff and the other class members and directed their lawyers to send false and misleading communications through the U.S. mail with the intent to defraud in violation of 18 U.S.C. § 1341. The acts of mail fraud include the mailing of the false and misleading February 2, 2005 letter to Plaintiff.

Wire Fraud

9.56 Defendants formed a common scheme and enterprise to defraud Plaintiff and the other class members and in furtherance of this scheme sent false and misleading communications transmitted through the means of wire in violation of 18 U.S.C. § 1343. The acts of wire fraud include the February and March 2005 telephone conversations between Plaintiff and Settlement Support Center.

Hobbs Act

9.57 Through the above-detailed enterprise, Defendants conspired to and/or attempted to coerce and threaten Plaintiff and the other class members into paying the Defendant Record Companies thousands of dollars in violation of the Hobbs Act, 18 U.S.C. § 1951, et seq. Defendants’ conduct in violation of the Hobbs Act includes the mailing of the threatening, false and misleading February 2, 2005 letter by lawyers for the RIAA and the Record Companies; the various February and March 2005 phone conversations in which representatives of Settlement Support Center made false and misleading representations and threats; the June 24, 2005 filing of the baseless sham lawsuit; and various threats made by lawyers for the RIAA and the Record Companies during the pendency of the litigation against Ms. Andersen. Each of these acts were committed to intimidate Plaintiff and extort from her payment of thousands of dollars.

Interstate Commerce for Unlawful Activity

9.58 As detailed above and herein, Defendants engaged in and/or conspired to engage in interstate and/or foreign travel and utilize interstate mails in order to promote, manage, establish, and/or carry on their unlawful activities.

9.59 Defendants frequently engaged in interstate commerce to facilitate and promote, manage, establish and carry on the unlawful criminal investigation of Ms. Andersen and other class members in violation of ORS 703.405 and 163.275 and similar laws of other states and/or facilitate the fraudulent schemes discussed above.

9.60 Defendants’ knowing, willful, and intentional acts violated 18 U.S.C. § 1952.

Oregon Predicate Act-Coercion

9.61 Through the above-detailed enterprise, Defendants conspired to and/or attempted to improperly coerce Plaintiff and the other class members into paying the RIAA and the Record Companies. This conduct constitutes a violation of Oregon’s coercion statute, ORS 163.275, and is punishable by up to five years’ imprisonment. Defendants’ conduct in violation of the coercion statute includes the mailing of the threatening, false and misleading February 2, 2005 letter by lawyers for the RIAA and the Record Companies; the various February and March 2005 phone conversations in which representatives of Settlement Support Center made false and misleading representations and threats; the June 24, 2005 filing of the baseless sham lawsuit, and various threats made by lawyers for the RIAA and the Record Companies during the pendency of the litigation against Ms. Andersen. Each of these acts were committed in an attempt to intimidate Plaintiff into paying of several thousand dollars and/or abandoning her counterclaims. In each instance, Defendants’ representatives directly or impliedly threatened that if Plaintiff did not pay the RIAA or the Record Companies and/or abandon her counterclaims, Defendants or their agents would provide false information with respect to legal claims against Plaintiff and her potential defenses thereto, or would engage in other criminal conduct.

C. Pattern of Related Racketeering Acts

9.62 Defendants’ acts formed a pattern of racketeering as defined in 18 U.S.C. § 1961(5). Defendants have committed at least two acts of racketeering. These acts represent a common course of conduct used by Defendants to target thousands of citizens throughout the United States. These activities shared the common objectives of seeking payment of thousands of dollars from each person targeted, regardless of their innocence, in order to preserve and maintain a monopolistic music distribution scheme. These acts had the same or similar purposes, results, participants, victims and methods of commission.

9.63 As an example of Defendants’ pattern of activity, in September 2004, lawyers for the RIAA sent to Debbie Foster of Oklahoma a letter asserting that they had “evidence” of copyright infringement, threatening litigation, and demanding that Ms. Foster contact their agents. As in the letter sent to Plaintiff, the letter to Ms. Foster contained various misrepresentations and material omissions concerning MediaSentry’s investigation and the “evidence” gained from it. Ms. Foster contacted the RIAA’s agents, who demanded several thousand dollars in payment. Although she repeatedly asserted her own innocence, when Ms. Foster refused to make an undeserved payment to the RIAA, several RIAA member companies sued her, causing her to incur significant costs as a result. Ms. Foster ultimately prevailed in that lawsuit, which a district court later found objectively baseless.

9.64 As further evidence of Defendants’ pattern of activity, in September 2004, several RIAA member companies filed suit against James Nelson of Michigan. When Mr. Nelson’s counsel called a lawyer for the RIAA and presented evidence that Mr. Nelson did not engage in any of the alleged infringing acts, the RIAA’s lawyer insisted that Mr. Nelson’s lack of involvement was irrelevant and threatened that the companies would pursue the suit against him for hundreds of thousands of dollars whether or not he had ever engaged in the alleged filesharing.

9.65 Defendants and their agents stood to financially benefit from these deceptive and unlawful acts. Proceeds from these activities are used to fund the operation of Defendants’ continued public threat campaigns against the other members of the class.

9.66 Defendants’ enterprise engages in interstate commerce, and Defendants’ activities affect interstate commerce. As a result of Defendants’ racketeering activities, Ms. Andersen was unable to return to work and derive income. As a result, she was unable to engage in desired interstate commercial activity that she otherwise would have. Further, she engaged in interstate commerce as a result of investigating the integrity of her computer, investigating plaintiffs’ claims, and participating in the sham litigation against her. Thousands of others similarly situated were prevented from engaging in desired commercial activities and were compelled to engage in undesired commercial activities, and also spent additional funds in interstate commerce on legal fees and settlement proceeds in defending and resolving sham litigation.

D. Injury

9.67 Defendants’ racketeering activities have directly and proximately resulted in damages to Plaintiff and other members of the class in an amount to be specifically proven at trial.

FOURTH CLAIM FOR RELIEF FEDERAL RACKETEERING INFLUENCED CLAIMS AND CORRUPT ORGANIZATION ACT CONSPIRACY TO ENGAGE IN RACKETEERING ACTIVITY

18 U.S.C. § 1962(d)

All Defendants

9.68 Plaintiff realleges and incorporates herein by reference each of the allegations set forth above. Plaintiff makes this claim against all Defendants.

9.69 The Racketeer Influenced and Corrupt Organization Act (RICO) prohibits companies from conspiring to engage in organized racketeering or criminal activities. RICO provides that it is unlawful for any person employed by, or associated with, any enterprise to merely conspire to violate 18 U.S.C. § 1962 (c). 18 U.S.C. § 1962(d).

A. Enterprise

9.70 As detailed above and herein, the RIAA, MediaSentry, the Record Companies, and Settlement Support Center each worked in association with each other for the purpose of conspiring to create and operate an enterprise to wage a public threat and intimidation campaign targeting, in part, Plaintiff and other members of the class, in an effort to maintain control of and monopolize the distribution of music recordings.

9.71 Pursuant to a secret agreement reached in or about 2002, the RIAA, its controlled member companies and MediaSentry conspired to develop a massive threat and litigation enterprise targeting private citizens across the United States. In June 2003, the RIAA publicly announced that it would begin a campaign that would involve thousands of threats and lawsuits against individuals.

9.72 As a part of the enterprise MediaSentry has for years conducted illegal, flawed and negligent investigations of many thousands of private United States citizens. These illegal investigations were and are used as the sole basis for tens of thousands of threatened and actual lawsuits against individuals throughout the U.S.

9.73 Defendants have known for years that their investigation protocol is fundamentally flawed and illegal. The protocol is subject to several known technical flaws that can result in misidentification. However, even if these technical flaws are not implicated in any individual case, the protocol simply cannot identify those individuals who are later subject to improper threats, coercion, and personal suit in federal district court. MediaSentry’s investigations are also performed in violation of private investigation licensing requirements applicable in Oregon and most other states; they are thus illegal.

9.74 In various communications with Ms. Andersen and others similarly situated, the RIAA, the Record Companies, and Settlement Support Center have misrepresented the true nature of these illegal, flawed private investigations and the “evidence” gained there from in an attempt to coerce undeserved payments from targeted individuals. As exemplified in the February 2, 2005 letter to Ms. Andersen, lawyers for the RIAA and the Record Companies repeatedly made false representations and material omissions in asserting that its investigation had produced “evidence” which personally and conclusively identified the targeted individual as the party responsible for alleged infringing acts. As exemplified in the February and March 2005 telephone conversations between Ms. Andersen and Settlement Support Center, Settlement Support Center has repeated the false representations and material omissions concerning the investigation and the “evidence” gained from it, and has also admitted that Defendants intended to coerce payment from Ms. Andersen and others similarly situated despite the admitted innocence of the targeted individuals.

9.75 Although certain of Defendants’ activities were ostensibly undertaken for purposes of particular litigation against Plaintiff and others similarly situated, in reality they were conducted to promote generalized public fear and intimidation in order to further the common business interests of the RIAA, the Record Companies, and other RIAA-member companies. The investigation, the threats of litigation, and the litigation itself were all undertaken without an objectively reasonable basis to support the particular claims threatened and/or alleged against Plaintiff and others similarly situated. The investigation, the threats of litigation, and the litigation in Plaintiff’s case, and in the cases of similarly situated class members, were all undertaken without regard to the merits of each particular case. These activities were instead performed in a generic manner as part of Defendants’ broader, coordinated racketeering enterprise. These activities are a “sham” as defined by the U.S. Supreme Court in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) and subsequent cases. As such, Defendants’ activities are not entitled to immunity under federal and state law.

9.76 The immediate aim of each of these activities was to threaten, intimidate and coerce Plaintiff and other wrongfully targeted individuals into paying the Record Companies and the RIAA thousands of dollars. The ultimate goal was to further the business interests of the RIAA, the Record Companies, and other RIAA-member companies by maintaining and preserving as long as possible their monopolistic control over the national market for the distribution of sound recordings.

9.77 Defendants’ association constitutes an “enterprise” as defined in 18 U.S.C. § 1961(4).

9.78 While each of the Defendants participated in the common enterprise, they also have an existence separate and distinct from the enterprise.

9.79 Defendants are each “persons” as defined in 18 U.S.C. § 1961(3).

B. Predicate Acts

9.80 Defendants’ acts in furtherance of their conspiracy to conduct a racketeeringenterprise include several predicate acts that constitute “racketeering activity” for purposes of

18 U.S.C. § 1961(1). These predicate acts, which are detailed above and herein, include mail fraud, wire fraud, violations of the Hobbs Act, interstate travel or transportation in aid of racketeering and other acts involving extortion that are chargeable under state law. Mail Fraud

9.81 Defendants formed a common scheme and enterprise to defraud Plaintiff and the other class members and directed their lawyers to send false and misleading communications through the U.S. mail with the intent to defraud in violation of 18 U.S.C. § 1341. The acts of mail fraud include the mailing of the false and misleading February 2, 2005 letter to Ms. Andersen.

Wire Fraud

9.82 Defendants formed a common scheme and enterprise to defraud Plaintiff and the other class members and in furtherance of this scheme sent false and misleading communications transmitted through the means of wire in violation of 18 U.S.C. § 1343. The acts of wire fraud include the February and March 2005 telephone conversations between Ms. Andersen and Settlement Support Center.

Hobbs Act

9.83 Through the above-detailed enterprise, Defendants conspired to and/or attempted to coerce and threaten Plaintiff and the other class members into paying the Defendant Record Companies thousands of dollars in violati