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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re PHARMATRAK INC. COMMUNICATIONS LITIGATION 00 Civ. 6121 (DAB) CONSOLIDATED AMENDED CLASS ACTION COMPLAINT This Document Relates to: ALL ACTIONS. JURY TRIAL DEMANDED Plaintiffs Rob Barring, Noah Blumofe. Jim A. Darby, Karen Gassman, Robin McClary,Harris Perlman and Marcus Schroers (collectively, “plaintiffs”), by their undersigned counsel,for their Consolidated Class Action Complaint allege the claims set forth herein. Plaintiffs’claims as to themselves and their own actions, as set forth in 11-17 herein, are based upontheir personal knowledge. All other allegations are based upon information and belief pursuantto the investigations of counsel. Based upon such investigation, plaintiffs believe that substantialevidentiary support exists for the allegations herein and that such allegations are likely to haveevidentiary support after a reasonable opportunity for further investigation and discovery. NATURE OF THE ACTION 1. Plaintiffs bring this action on behalf of themselves and a Class defined as follows: ALL PERSONS IN THE UNITED STATES WHO HAVE VISITED ANY WEB SITE OWNED OR OPERATED BY ANY DEFENDANT NAMED HEREIN AND WHO, AS A RESULT THEREOF, HAVE HAD INFORMATION ABOUT THEM GATHERED BY PHARMATRAK OR WHO HAVE HAD PHARMATRAK “COOKIES” PLACED UPON THEIR COMPUTERS (the “Class”). Plaintiffs allege that through the use of HTML and JavaScript programming,”web bugs,” “cookies,” unique identifiers and other devices, defendants have secretlyintercepted and accessed Internet users’ electronic communications with various health-relatedand medical-related Internet Web sites and thereby collected personal, private information aboutthem – including their Web browsing habits and confidential health information – without theirknowledge or consent. Defendants have used this unlawfully obtained information for their owncommercial benefit. 2. When plaintiffs and the Class visited certain Internet Web sites which had abusiness relationship with Pharmatrak, Inc. (“Pharmatrak.”) these Web sites and Pharmatraksurreptitiously intercepted, accessed, transmitted and used plaintiffs’ and the Class’ electroniccommunications and personal information without their knowledge or consent, DefendantPharmatrak had an undisclosed and invisible presence on the health-related Web sites of many large pharmaceutical companies such as defendants Pfizer, Inc., Pharmacia Corporation,Smithkline Beecham, Inc., Glaxo Welcome, Inc., and American Home Products Corporation(collectively, “the pharmaceutical defendants”), who deliberately coded certain of their Webpages to secretly transmit information about their Web visitors to Pharmatrak. This coding andtransmission of information was done for the express purpose of tracking Internet users to learntheir behavior . 3. The personal and private information that Pharmatrak and the pharmaceuticaldefendants wrongfully obtained and/or transmitted includes, but is not limited to, some or all ofthe following: (a) Internet users’ Internet surfing habits and history; (b) Internet users’ health andmedical condition and their medical history, including any diseases, injuries, or disabilities theymay suffer from and any medication and/or physical or mental therapy they may take for suchconditions, diseases, injuries or disabilities; (c) medical conditions, diseases, treatments, drugsand health issues researched by Internet users; (d) Internet user’s Internet users’ full names; (e)Internet users’ home addresses; (f) Internet users’ e-mail addresses; (g) Internet users’ phonenumbers; (h) the full Uniform Resource Locator (“URL”) for any Web page encoded with aPharmatrak “web bug” and visited by a particular user and any personal information submittedby an Internet user to any of these Web pages; and (i) other personal, highly-detailed,demographic data. 4. Defendants’ skill in concealing their unlawful tracking and profiling activitieswas so complete that plaintiffs and the Class had no idea their computer transmissions and storeddata were being monitored, accessed and intercepted. Indeed, they had no idea that companycalled Pharmatrak even existed. None of the pharmaceutical defendants disclosed any trackingon their Web pages or even mentioned Pharmatrak in their privacy policies or privacydisclosures, and certain pharmaceutical defendants did not even have a privacy policy or anyprivacy disclosures. 5. In an August 15, 2000 article in the Washington Post, Pharmatrak’s ChiefExecutive Officer, Michael Sonnenrich expressed scorn at Internet users and others, includingthe State of Michigan Attorney General, concerned about their privacy and about Pharmatrak’sinformation gathering practices. He stated that they should know “they’re using an open accessmeans of communication,” and that “if they file a suit [based upon Pharmatrak's conduct] they’re idiots.” (Emphasis added). 6. Plaintiffs and the Class have legally protected privacy interests in the personalinformation described above, and had an actual and reasonable expectation that defendantswould not intercept, access, or otherwise use that information without their consent. Plaintiffshad a reasonable expectation of privacy concerning their communications with the Web sitesthey visited. By unlawfully obtaining plaintiffs’ and the Class’ personal information, defendantsengaged in conduct that constitutes a serious invasion of privacy, is highly offensive, andviolates applicable federal and state laws. 7. As a result of defendants’ wrongful conduct, plaintiffs seek equitable relief andmonetary damages, including statutory and punitive damages, to redress defendants’ unlawfulpractice of obtaining plaintiffs’ and the Class’ personal information without their priorknowledge or consent. JURISDICTION AND VENUE 8. This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. �1331, as plaintiffs bring this action pursuant to 18 U.S.C. � 2510, et seq. (ElectronicCommunications Privacy Act – Interception of Electronic Communications), 18 U.S.C. � 270l, et seq. (Electronic Communications Privacy Act – Stored Electronic Communications), and 18U.S.C. � 1030, et seq. (Computer Fraud and Abuse Act). This Court also has supplementaljurisdiction over the state law claims pursuant to 28 U.S.C. � 1367(a). 9. Venue is proper in this District pursuant to 28 U.S.C. � 1391 because defendantPfizer, Inc. maintains its principal place of business in this district and defendants, at all relevanttimes, have conducted substantial business in this District. 10. In connection with the acts, transactions and conduct alleged herein, defendantsused the means and instrumentalities of interstate commerce, including the United States’interstate telephone communication system and the Internet. THE PARTIES Plaintiffs 11. Rob Barring. a resident of Irving, California, brings this action on behalf ofhimself and all others similarly situated. Mr. Barring has used the Internet on numerousoccasions since 1994. Mr. Barring accesses the Web through an Internet Service Provider(“ISP”) and has visited one or more of defendants’ Web sites during the relevant period. 12. Noah Blumofe, a resident of Chicago, Illinois. brings this action on behalf ofhimself and all others similarly situated. Mr. Blumofe has used the Internet on a regular basissince November 1997 and accesses the Internet through an ISP. Mr. Blumofe has visited one ormore of defendants’ Web sites during the relevant period. 13. Jim A. Darby, a resident of California, brings this action on behalf of himself andall others similarly situated. Mr. Darby has used the Internet on a regular basis sinceapproximately 1995 and accesses the Internet through an ISP. Mr. Darby has visited one ormore of defendants’ Web sites during the relevant period. 14. Karen Gassman, a resident of Louisville, Kentucky, brings this action on behalfof herself and all others similarly situated. Ms. Gassman has used the Internet on a regular basissince July 1998 and accesses the Internet through an ISP. Ms. Gassman visited one or more ofdefendants’ Web sites during the relevant period. 15. Robin McClary, a resident of Brooklyn, New York, brings this action on behalf ofherself and all others similarly situated. Ms. McClary has used the Internet on a regular basissince 1993 and accesses the Internet through an ISP. Ms. McClary visited one or more ofdefendants’ Web sites during the relevant period. 16. Harris Perlman, a resident of Chicago, Illinois, brings this action on behalf ofhimself and all others similarly situated. Mr. Perlman has used the Internet on a regular basissince September 1996 and accesses the Web through an ISP. Mr. Perlman visited one or more ofdefendants’ Web sites during the relevant period. 17. Marcus Schroers, a resident of California, brings this action on behalf of himself ,and all others similarly situated. Mr. Schroers has used the Internet on a regular basis since 1994and accesses the Web through an ISP. Mr . Schroers visited one or more of defendants’ Websites during the relevant period. 18. One or more plaintiffs has visited one or more Web sites owned and/or operatedby each of the pharmaceutical defendants in this action. Defendants 19. Pharmatrak, Inc. is a Delaware corporation with its principal place of businesslocated at 192 South Street, Suite 500, Boston, Massachusetts 02111. Pharmatrak is a privatelyowned subsidiary corporation of Glocal Communications, Ltd. Pharmatrak is an Internetinformation company that provides user-tracking services to pharmaceutical companies thatsubscribe to its services. Pharmatrak contracts with its various clients to provide covert datacollection, monitoring and analysis via the clients’ own Internet Web site or sites. 20. Glocal Communications, Ltd. (“Glocal”), was founded in 1997 as a technology-based holding company. Glocal is organized under the laws of the United Kingdom and is aholding company and/or operator of Pharmatrak. 21. Upon information and belief, SmithKline Beecham, Inc. (“SmithKline”) is awholly-owned subsidiary of Glaxo SmithKline plc. SmithKline’s principal place of business islocated at One Franklin Plaza, Philadelphia, Pennsylvania. SmithKline conducts a substantialamount of business in this District. SmithKline used Pharmatrak’s Internet services and therebyfacilitated, participated in, and benefitted from the wrongful course of conduct alleged herein. 22. Upon information and belief, Glaxo Welcome, Inc. (“Glaxo”) is wholly-ownedsubsidiary of Glaxo SmithKline plc. Glaxo’s principal place of business is located at 5 MooreDrive, Research Triangle Park, North Carolina. Glaxo conducts a substantial amount of businessin this District. Glaxo used Pharmatrak’s Internet services and thereby facilitated, participatedin, and benefitted from the wrongful course of conduct alleged herein. 23. American Home Products Corp. (” AHP”) is a Delaware corporation with itsprincipal place of business located at 5 Giralda Farms, Madison, New Jersey. AHP is one of thelargest research-based pharmaceutical and health care product companies in the world. AHPowns and operates numerous Internet Web sites including: http://www.ahp.com. AHP usedPharmatrak’s Internet services and thereby facilitated, participated in, and benefitted from thewrongful course of conduct alleged herein. 24. Pfizer, Inc. (“Pfizer”) is a Delaware corporation with its principal place ofbusiness located at 235 East 42nd Street, New York, New York. Pfizer is one of the world’slargest research-based pharmaceutical companies, providing prescriptions medicines and over-the-counter health care products for humans as well as animals. Pfizer products are available inover 150 countries. Pfizer owns and operates numerous Internet Web sites including: htm://www.pfizer.com. Pfizer used Pharmatrak’s Internet services and thereby facilitated,participated in, and benefitted from the wrongful course of conduct alleged herein- 25. Pharmacia Corp. (“Pharmacia”) is a Delaware corporation with its principal placeof business located at 100 Route 206 North, Peapack, New Jersey. Pharmacia was formed onApril 3, 2000 by virtue of a merger between Pharmacia & Upjohn and Monsanto Company.Pharmacia’s core business is the development, manufacture, and sale of pharmaceutical products,including prescription and non-prescription products for humans and animals. Pharmacia ownsand operates numerous Internet Web sites including: http://www.pharmacia.com. Pharmaciaused Pharmatrak’s Internet services and thereby facilitated, participated in, and benefited fromthe wrongful course of conduct alleged herein. 26. Defendants have acted cooperatively and with full knowledge of, and inagreement with, each others’ actions and practices alleged herein, especially with Pharmatrak’sactions and practices. Indeed, in effecting the wrongful acts alleged herein, the defendants acted,effectively, as co-conspirators in agreeing to collect and share this wrongfully obtained personaland sensitive information. CLASS ACTION ALLEGATIONS 27. Plaintiffs bring this action as a class action, pursuant to F ed R. Civ. P. 23, individually and on behalf of a Class defined as: ALL PERSONS IN THE UNITED STATES WHO HAVE VISITED ANY WEB SITE OWNED OR OPERATED BY ANY DEFENDANT NAMED HEREIN AND WHO, AS A RESULT THEREOF, HAVE HAD INFORMATION ABOUT THEM GATHERED BY PHARMATRAK OR WHO HAVE HAD PHARMATRAK “COOKIES” PLACED UPON THEIR COMPUTERS Excluded from the class are the defendants, any parent subsidiary or affiliate of any defendantand all officers, directors, and employees who are or have been employed by any defendantduring the Class Period. 28. The Class is so numerous and geographically dispersed that joinder of allmembers is impracticable. While the exact number and identity of Class members cannot beascertained by plaintiffs at this time, it consists of at least many thousands of Internet usersnationwide who visited one or more of defendants’ Web sites. The number of potentialmembers of the Class is not precisely determined at the present time, but can be establishedthrough notice and discovery . 29. Questions of law and fact common to plaintiffs and the Class predominate overany individual questions affecting only individual members. Among these common questions oflaw and fact are: (a) Whether defendants participated in and/or committed or are responsible for theconduct complained of; (b) Whether Pharmatrak’s products and services at issue are able to access, intercept,and transmit personal and private information of Class members communicated over the Internetand/or contained in their computers; (c) Whether defendants, through their wrongful course of conduct described herein,violated the Electronic Communications Privacy Act – Interception of ElectronicCommunications. l8 U.S.C. �2510, et seq.; (d) Whether defendants, through their wrongful course of conduct described herein,violated the Electronic Communications Privacy Act – Stored Electronic Communications, 18U.S.C. �2701, et seq.; (e) Whether defendants, through their wrongful course of conduct described herein,violated the Computer Fraud and Abuse Act, 18 U.S.C. �1030, et seq.; (f) Whether defendants conduct was willful, reckless and/or intentional; (g) Whether defendants were unjustly enriched as a result of their wrongful course ofconduct alleged herein; (h) Whether plaintiffs and the Class are entitled to an award of statutory damages,and, if so, in what amount; (i) Whether plaintiffs and the Class are entitled to an award of compensatory and/orpunitive damages and, if so, in what amount; (j) Whether plaintiffs and the Class are entitled to declaratory, injunctive, and/orother equitable relief. 30. Plaintiffs’ claims are typical of the Class’ claims and do not conflict with theinterests of any other members of the Class in that plaintiffs visited one or more of defendants’Web pages upon which Pharmatrak “web bugs” were encoded. Plaintiffs’ visits to these sitesenabled defendants, through the use of Pharmatrak’s products and services, to surreptitiouslytrack and/or profile plaintiffs by implanting cookies upon their computer hard drives andwrongfully and secretly intercepting, accessing and capturing plaintiffs’ private, electroniccommunications and their personal information for defendants’ own benefit. Plaintiffs assertclaims that are typical of the claims of the entire Class, as all Class members have beensubjected to this exact same wrongful conduct, and the relief plaintiffs seek is common to theClass. 31. Plaintiffs will fairly and adequately protect the interests of the other Classmembers and have no interests that are antagonistic to or which irreconcilably conflict withthose of other Class members. Plaintiffs are committed to the vigorous prosecution of this actionand have retained competent counsel experienced in litigation of this nature to represent themand the Class. 32. A class action is the superior method for the fair and efficient adjudication of thiscontroversy, since joinder of all Class members is impracticable. Plaintiffs are not aware of anypotential difficulties in the management of this action as a class action. Furthermore, becausethe damages suffered by individual Class members may be relatively small, the expense andburden of individual litigation make it prohibitively expensive for Class members to individuallyredress the wrongs done to them. Thus, because of the nature of the individual Class members’claims in this litigation, few, if any, could otherwise afford to seek legal redress againstdefendants for the wrongs complained of herein, and a representative class action is thereforeboth the appropriate vehicle by which to adjudicate these claims and is essential to the interestsof justice. 33. Absent a representative class action, Class members would continue to sufferlosses for which they would have no remedy and defendants would unjustly retain both theproceeds of their ill-gotten gains and the wrongfully obtained information. Even if separateactions could be brought by individual Class members, the resulting multiplicity of lawsuitswould cause undue hardship and expense for both the Court and the litigants, as well as create arisk of inconsistent rulings and adjudications which might as a practical matter be dispositive ofthe interests of the other Class members who are not parties to the adjudications, maysubstantially impede their ability to protect their interests and/or which would establishincompatible standards of conduct for defendants. 34. Defendants have acted and/or refused to act on grounds generally applicable toplaintiffs and the Class, thereby rendering Class certification and injunctive and/or declaratoryrelief with respect to the Class as a whole appropriate as well. 35. A class action regarding the issues in this case creates no problems ofmanageability. In particular, notice of pendency of this action can be given in a variety of ways,including publication through the Internet and/or through other media. FACTUAL ALLEGATIONS 36. Pharmatrak and the pharmaceutical defendants knew, or should have known, thatmost people who visit pharmaceutical Web sites are investigating or researching informationconcerning highly sensitive and confidential health issues – such as information concerningprescription drugs. diseases, disabilities, support groups, treatments and surgeries – which anaverage person would not wish to share with unknown others. 37. Pharmatrak and the pharmaceutical defendants have covertly and withoutauthorization accessed. intercepted, tracked, monitored, and compiled personal electronicinformation and communications from the plaintiffs and the Class – all of whom have visitedone or more of the pharmaceutical defendant’s Web sites. Unknown to plaintiffs and the Class,this scheme was designed and implemented by Pharmatrak and its clients, including thepharmaceutical defendants, to permit them to track individual computer users and learn theirInternet behavior: for product marketing and Web site design and evaluation purposes. 38. Pharmatrak designed this unlawful scheme and the pharmaceutical defendantsimplemented it on one or more of their respective Web sites. The pharmaceutical defendantsand Pharmatrak have acted cooperatively and with full knowledge of each others’ actionsthroughout; indeed, in effecting the wrongful acts alleged herein, these defendants acted jointly,.either as each other’s agents or, effectively, as coconspirators. The Internet 39. Computer networks are composed of individual computers connected together toshare information. Any time persons connect two or more computers together so that they canshare resources, they have a computer network. In its simplest terms, the “Internet” is the vastcollection of inter-connected computer networks that has been commercialized for mass marketuse. The World Wide Web (“the Web”) is a subset of the Internet consisting of a vast,decentralized collection of documents containing text, visual images, audio clips and otherinformation media. 40. Computers known as “servers” store Web documents and other information andmake them available over the Internet through a set of standard operating and transmissionprotocols that define and structure the Web ‘ s operation and organization. Web sites are groupsof related documents that reside on one or more servers. Uniform Resource Locators (“VRLs”)are addresses that indicate the precise location of specific Web documents on a server. 41. The plaintiffs and Class access the Internet and communicate with othercomputers either through use of commercial ISPs, such as America Online or Juno, or throughcomputers known as servers that are operated by the entity which provides their computeraccess, such as their employer. In each case, the ISP or the server provides the electroniccommunication service that allows the user’s computer to connect with other computers on theInternet. Because the Internet is global and Web sites are located throughout every state andnearly every country, the plaintiffs’ and C1ass’ computers are used in interstate and foreigncommerce and communication and their electronic communications with other computers or Web sites affect interstate commerce. 42. For a person’s computer to access stored Web documents that are made availablevia the Internet, the computer (known as the “client”) must request a connection to the servercontaining that information. When a client computer sends such a request to a server, the clientbasically “tells” the server what information it wants. The server, based upon the client’srequest, formulates a response, which it then returns to the client with the requested information (if available ). The responses sent by the server are placed in temporary , immediate storage onthe client computer incidental to the transmission of such electronic communications. Just as acaller and callee in a telephone network need to speak the same language to communicate, theWeb client and the Web server need to speak the same language in order to exchangeinformation. That language is the standard set of protocols that define the Web. The term”Web” generally refers to any Internet-reachable server that grants information requests usingthese Web protocols. 43. When Internet users view a Web page, it appears to them as a projected imagecomposed of text, graphics, and visual objects. The veneer that users see is created by acomputer code called “Hypertext Markup Language” Or “HTML” and other computer languages.Thus, users on the pharmaceutical defendants’ Web sites do not see the programming thatcreates the Web page, but only the finished product of text and images. In addition, Web sitesoften also utilize a second programming language, called JavaScript, to create or enhance theirWeb sites. NETcompare and/or DRUGcompare:Defendants’ Unlawful and Surreptitious Use of JavaScript, Web Bugs, and Cookies 44. Pharmatrak and the pharmaceutical defendants track Internet users through theuse of HTML programming, JavaScript programming “cookies,” and “web bugs.” Uponinformation and belief, this unlawful tracking and monitoring is accomplished usingPharmatrak’s NETcompare and/or DRUGcompare software products and services. Uponinformation and belief, most, if not all, of the pharmaceutical defendants purchased Pharmatrak’sNETcompare product or service. 45. When an Internet user visits a Pharmatrak-enabled Web page, one or more linesof HTML and Java Script programming code are employed by the Web page to instruct theuser’s computer to contact Pharmatrak’s web server and retrieve a “web bug” from it. 46. A “web bug,” sometimes called an “invisible GIF” or a “transparent GIF,” is aninvisible graphic image, usually one pixel-by-one pixel ( or two pixels-by-two pixels). Thepurpose of defendants’ web bug is to cause the user’s computer. while it is conversing with apharmaceutical defendant Web site, to secretly communicate with an unidentified and invisiblethird-party – Pharmatrak – for the purpose of enabling Pharmatrak to surreptitiously monitor andtrack the user’s electronic communication with the Web site and to gather his or her Webbrowsing behavior and any information he or she submits to the Web site. 47. The web bug causes Pharmatrak’s Web server to secretly implant or access a”cookie,” discussed further below, on the user’s computer hard drive. 48. Although web bugs are invisible to Web users, they are very effective insurreptitiously tracking Web users’ movements within and across Web sites and for placingthird-party cookies on Web users’ computers. 49. A cookie is a specially formatted electronic file that is implanted on an Internetuser’s computer by a Web site. Cookies can contain virtually any kind of information and canbe used for a variety of purposes. Cookies generally perform many convenient and innocuousfunctions. They are commonly used, for example, to store user names and passwords, making iteasier for people to access servers that require authentication to view certain Web pages. Theyare also used to keep track of “shopping cart” items a user might purchase from a Web site.Internet companies sometimes differentiate between Internet visitors to their site by assigningeach particular visitor a unique identification number that is contained in the cookie on his or hercomputer. 50. The original purpose of cookies, however, has been subverted by Internetmarketing and data-mining companies like Pharmatrak. Through the use of HTML andJavaScript code, web bugs and cookies with unique identifiers, Pharmatrak has devised a way touse cookies to track and record a particular Internet user’s movements across its different clients’Web sites and to surreptitiously gather, via undisclosed cookie implantation personalinformation about users, such as a users’ Internet browsing habits, certain Web pages they visit,medical issues they have researched, and personal information they have submitted to Web sites. 51. When a computer user visits a Pharmatrak-enabled Web page for the first time,the page’s programming code and the web bug will cause Pharmatrak to secretly plant a cookieon the user’s computer hard drive. The cookie contains a unique (numeric or alphanumeric)identifier, which identifies that particular user as a unique person so that Pharmatrak will be ableto recognize him or her the next time he or she visits another Pharmatrak-enabled Web page.From that time on, every time the user visits any other Pharmatrak-enabled Web site or Webpage, the information contained in the Pharmatrak cookie on the user’s computer is secretlyaccessed sent back to Pharmatrak where it is compiled with other information on that particularuser. In addition, the user’s cookie may be updated or an additional cookie may be planted. 52. Most cookies are set by their generators to expire within a short amount of timeafter they are created – sometimes as briefly as a single Internet session. Once the expirationdate has been reached, the cookie becomes defunct and is no longer forwarded to the companythat set it. Internet Marketing companies like Pharmatrak, however, set their cookies’ expirationdates for periods well into the future – sometimes up to 30 years or longer. This guaranteescontinued access and “linkage” for a virtually indefinite time period, ensuring that Pharmatrak -and, correspondingly, its pharmaceutical defendant clients – are able to gather large quantities ofdata regarding plaintiffs and the Class. After a Pharmatrak cookie is implanted onto a user’scomputer, Pharmatrak is automatically able to access, read and update that cookie from any oftheir clients’ Web sites where it has a presence, thereby enabling Pharmatrak to perpetuallyupdate and enhance its user log files and/or user profiles for defendants’ mutual commercial use,benefit and enrichment. 53. Pharmatrak’s relationship with all of the pharmaceutical defendants is criticallyimportant because its technology tracks and monitors users across multiple Web sites.Pharmatrak could have designed its technology to utilize cookies and unique identifiers that are specific to each Web site client. In this circumstance, Pharmatrak could not use its cookies andidentifiers to track Internet users across Web sites; it could only track and profile a user’smovements on an individual Web site. Pharmatrak, however, did not limit its profiling capacityin this manner, and instead chose to identify users by globally unique identifiers contained incookies that are not specific to each of its Web site clients. Thus, the scope and depth ofPharmatrak’s data collection and profiling activities is limited only by the size of its customerbase: the more customers it has. the greater its capacity to create detailed profiles. 54. Defendants intercepted, caused to be intercepted, and/or conspired to interceptplaintiffs’ communications for several tortious purposes, including: to secretly track and monitorplaintiffs’ communications to learn about plaintiffs’ online behavior, including their health andmedical interests and concerns — in other words, to invade their privacy; to unjustly enrichthemselves at plaintiffs’ expense by misappropriating their personality and thereby obtaining freemarket research and a consumer behavior database; and to secretly (and continually) accessplaintiffs’ private property, their computers. These were defendants’ purposes at the time theyintercepted plaintiffs’ communications. 55. Inplanting and accessing the cookie in plaintiffs’ and the Class’ computer harddrive, defendants were accessing a communication concerning and intended for the computeruser himself or herself and not a communication concerning or intended for any third-party Website. 56. In describing and marketing its NETcompare and DRUGcompare products andservices, Pharmatrak boasts about the power and reach of its data collection and profilingtechnology. NETcompare essentially tracks user viewing and movement across the client’scorporate Web pages, while DRUGcompare tracks viewing and movement across diseasecategories and drug product pages. After obtaining data about individual Internet users throughthe use of its covert interception and tracking technology, Pharmatrak then compiles the data intoanalyses and reports that are used by it and its clients for their mutual benefit. After a companycontracts with Pharmatrak for its NETcompare or DRUGcompare products or services,Pharmatrak or the company, with Pharmatrak’s training and assistance, then re-programs certainof its Web pages to direct visitors’ computers to secretly and automatically contact Pharmatrak’sWeb server in the previously-described manner. 57. In describing and promoting its NETcompare product or service, Pharmatrakstates that it “monitors the corporate sites of its member companies 24 hours per day, seven days ,a week and provides detailed monthly analyses in the form of comparative graphs, pie charts andwritten analytical reports” as well as “detailed monthly reports [that] break down theinformation qualitatively in terms of the location of visitors and the domain to which theybelong,” enabling Pharmatrak to identify users as originating from “government, academia, orother commercial organizations.” Pharmatrak claims that its technology “provides concrete datanot just on who is visiting your site, but . . . also highlights who should be looking at the site butfails to do so” ( emphasis added). Pharmatrak also claims that, “Thanks to [P]harmatrakNETcompare it will be possible to measure the qualitative and quantitative return on publicaffairs and e-promotion investments. Knowledge about the relative interests of the customerbase is an important step towards one-on-one marketing.” 58. In describing and promoting its DRUGcompare product or service, Pharmatrakstates that it tracks and monitors: hits and visits to the websites of various disease categories and their corresponding drug sites. It analyzes the reach, the attention, the immersion and the mindshare which specific disease categories obtain on the Internet. To the extent that individual drugs already have their own websites, [P]harmatrak DRUGcompare also provides reports on the traffic patterns it observes on such sites. Put differently, DRUGcompare mines user data enabling it to “report which web sites in a givendisease category have received how much attention. It will also show which drug websites areviewed by various interested parties for how long and under what kind of circumstances.” Pharmatrak’s Capture of Personal Information Submitted by Users to the Pharmaceutical Defendants’ Web Sites 59. While surfing the Internet. users have many opportunities to fill out online formsor to locate specific information by utilizing browse and search features commonly found onWeb sites. There are two mechanisms by which Internet users can submit data to a Web site.The Web site’s programming (not the Internet user) determines which mechanism is used. One,called a “GET” request. is where the information submitted, e.g., search terms, is included aspart of the URL, in what is known as the “query string” To give an example, if a person isinterested in researching drug treatments for his or her HIV, he or she might use the Internet tovisit a pharmaceutical company Web site and perform a search. His search request mightgenerate a “GET” request with the following URL: http://pharmaceutical.example.com/search?terms=aids+hiv+drug+combination. The other mechanism by which data can betransmitted to a Web site, called the “POST” request, transmits information without putting theinformation submitted in the URL. 60. While GET requests are often used to transmit relatively small amounts ofinformation submitted by Internet users to Web sites, they may also be used to transmit largeamounts of information, including identifying name and address information. For example, auser registering to use a product or service on a pharmaceutical Web site might generate thefollowing URL: www.registration/pharmaceutical.com/ v3.2xzynew/cgi-bin/data?cli=8&dat=snbamz&ampurl+live.av.com/ scripts/search.dll%3Fep%3D7&gca%3D name&street%3Dscity&sstate% 3Dzip&stel %3Ddavid+l+ grunbaum% 26s4355 +mesaview+terr%3Dtucson&saz%3D 85716&s520-283-7743 &int=alzheimer(z)+colostomy. 61. By virtue of its products and processes, Pharmatrak automatically captures andsurreptitiously obtains any information that an Internet user submits to a Pharmatrak-enabledWeb page using the GET method. By combining “GET” URL information with the cookies ithas implanted on Web users’ computer systems which contain unique identifiers, Pharmatrak isable to distinguish and identify individual users in great detail as they go from pharmaceuticalsite to pharmaceutical site on the Internet. If an Internet user registers or provides a Pharmatrakclient Web site with his or her name or address, such information can be used to directlycorrelate a user’s Web browsing profile with his or her offline identity. 62. While Pharmatrak currently disclaims that it collects personally identifiableinformation on Internet users – such as their name, address, e-mail address, telephone number, itin fact can and, upon information and belief, sometimes does receive personally identifiableinformation on Internet users who enter this information on Web pages utilizing the GET requestmethod of submitting information. More importantly perhaps, Pharmatrak’s Web site suggeststhat it has plans to identify people, stating, In the future, we may develop products and serviceswhich collect data that, when used in conjunction with the tracking database, could enable directidentification of certain individual visitors.” Also, Pharmatrak’s contacts with various non-profit and for-profit health care organizations and its intention to use its glocalhealthgate productfor these clients to create “individual member web sites for collecting survey data on a variety ofexperiences . . . to conduct post marketing surveillance studies of drugs or even to improve themanagement of clinical trial data” raise the specter that Pharmatrak will begin keeping – andutilizing for its own and its clients’ commercial benefit – detailed medical dossiers on hundredsof thousands of unsuspecting health care Users. Defendants Kept Their Monitoring Activities Completely Secret From Internet Users 63. Plaintiffs and the Class in no way authorized or consented to defendants’ invasiveand wrongful course of conduct in surreptitiously collecting and compiling their electroniccommunications from their computer systems. Indeed, plaintiff and the Class had no way ofeven knowing about the covert actions of defendants. 64. Despite the fact that some of the pharmaceutical defendants have privacy policiesposted on their Web sites, none of these policies disclose Pharmatrak’s involvement at the siteand/or its surreptitious information-gathering activities. None even mention Pharmatrak. Infact, defendant AHP does not even have a privacy policy or privacy disclosure on its Web site.As defendant Pharmacia’s spokeswoman Claudia R. Kovitz acknowledged, Pharmacia did notpost a privacy policy on any of its Web sites until late July, 2000- well after it had begun usingPharmatrak’s products and services. 65. None of the pharmaceutical defendants’ privacy policies or privacy disclosuresauthorized them or Pharmatrak to secretly intercept, access and monitor plaintiffs’ personal andprivate electronic communications and information. None of the pharmaceutical defendants ,privacy policies or privacy disclosures effectively or in fact notified or informed Internet users,including plaintiffs and the Class, that their personal information, including but not limited totheir Web browsing information, was being (or could be) intercepted, accessed, tracked,monitored and/or profiled. 66. Even if the pharmaceutical defendants’ privacy policies or privacy disclosureshad fully informed Internet users that their electronic communications were being intercepted,accessed, tracked, monitored and/or profiled – which they did not – these disclosures would stillhave been inadequate to obtain plaintiffs’ informed consent to such conduct, as most Internetuser never even read a Web site’s privacy policy unless given a specific reason to do so. 67. Although Pharmatrak now discloses on its Web site that it uses cookies to trackusers upon and across its clients’ Web sites (upon information and belief, it did not do this beforeroughly early to mid-2000), such purported disclosure is irrelevant if Pharmatrak’s tracking andprofiling technology is working properly. Internet users, including plaintiffs and the Class, haveno idea of Pharmatrak’s presence on defendants’ Web sites and thus remain ignorant of both thecontent and location of Pharmatrak’s policies and disclosures. Injury 68. Plaintiffs and the Class have been banned, as they have been subjected torepeated, unauthorized invasions of their privacy. Consumers have a legally protected privacyinterest in their online viewing and searching activities and in the information they submit to Web sites. Through their conduct, defendants have committed a highly offensive intrusion uponplaintiffs’ privacy and have prevented, and continue to prevent, plaintiffs and the Class fromfreely using their computers to review and search for health-related information on the Internet. 69. Inaddition, defendants have stolen, or misappropriated, the economic value of plaintiffs’ personality. It is plaintiffs’ right, if they so choose, to sell their personal information toa third-party, e.g., a market research company like the A.C. Nielsen Company (which measurestelevision ratings company) for their own economic gain, not defendants. In fact, some Internetmarketing and market research companies pay Internet users for allowing them to track theirInternet movements, or surfing habits. This practice, unlike defendants’ secret, unlawfulpractice here, (a) informs users of the tracking, (b) requires their consent, and (c) compensatesthem for the value of their demonstrated interests and preferences and for their loss of privacy. CAUSES OF ACTION COUNT I(Violation of Title I of the Electronic Communications Privacy Act — Interception of Communications, 18 U.S.C. � 2510. et seq.) 70. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 71. Communications by plaintiffs and the Class between their computers and anyother entity , including an Internet Web site or Internet service provider, over the Internet are”electronic communications” affecting interstate commerce as defined in 18 U.S.C. � 2510. 72. Defendants, either directly or by aiding, abetting and/or conspiring to do so, haveintentionally intercepted, endeavored to intercept, used, and/or disclosed the electroniccommunications of the plaintiffs and the Class in violation of 18 U.S.C. � 2511 by using, as setforth above, Pharmatrak’s technology and cookies to capture and transmit the contents ofplaintiffs’ electronic communications with the pharmaceutical defendants’ Web sites withoutplaintiffs’ or the Class’ knowledge, authorization, or consent and also by surreptitiouslyintercepting and using the communications between plaintiffs and the Class and thepharmaceutical defendants’ Web sites for the purpose of establishing an unauthorizedcommunication between plaintiffs and the Class and Pharmatrak. 73. Defendants, either directly or by aiding, abetting and/or conspiring to do so, haveintentionally intercepted, endeavored to intercept. used, and/or disclosed the electroniccommunications of the plaintiffs and the Class in violation of 18 U.S.C. � 2511 et seq., by using,as set forth above, Pharmatrak’s technology and cookies to intercept and co-opt plaintiffs’ andthe Class’ electronic communication services’ Internet connections to divert and reroute suchcommunications in order to capture, transmit, and receive the contents of plaintiffs’ electroniccommunications with the pharmaceutical defendants’ Web sites without plaintiffs’ or the Class’knowledge, authorization. or consent. 74. Defendants’ conduct in intercepting plaintiffs’ and Class members’ electroniccommunications without their knowledge or consent was willful and intentional and wascommitted for the purpose of engaging in tortious, deceptive behavior, as set forth herein. 75. Pursuant to 18 U.S.C. �2520, plaintiffs and each Class member is entitled topreliminary, equitable, and declaratory relief as may be appropriate, statutory damages of thegreater of $10,000 or $100 a day for each day of violation, actual and punitive damages,reasonable attorneys’ fees and costs, plus any profits made by each defendant as a result of suchviolations of law. COUNT II(Violation of Title II of the Electronic Communications Privacy Act — Stored Communications, 18 U.S.C. � 2701, et seq.) 76. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 77. Plaintiffs and all members of the Class own or utilize computers and obtainaccess to the Internet through Internet service providers (“ISPs”) or other computer servers. 78. Computer servers and ISPs provide users the ability to connect to the Internet andto send or receive electronic communications with other Web servers and are “electroniccommunications services” as that term is used in 18 U.S.C. � 2701 et seq. 79. Because Internet communications are provided directly into each user’s computerand packaged at and by each user’s computer, the computers utilized by plaintiff and each Classmember are facilities through which an electronic communication service is provided. 80. Electronic communications from Web sites visited by plaintiffs and Classmembers are placed in temporary, immediate storage on their computers incidental to thetransmission of such electronic communications. Pharmatrak cookies are placed in permanenthard drive storage on users’ computers. Thus communications by and between plaintiffs and thedefendants are placed in “electronic storage” on their computers as that term is used in 18 U.S.C.� 2701 et seq. 81. As set forth in greater: detail above, defendants. either directly or by aiding,abetting and/or conspiring to do so, have intentionally accessed, without authorization or byexceeding authorized access, electronic communications in storage on plaintiffs’ and the Classmembers’ computers in violation of 18 U.S.C. � 2701 et seq., namely by secretly accessing theircomputers through the use of HTML code, Java Script code, web bugs and cookies with uniquenumber identifiers, all without or exceeding the knowledge, authorization or consent of plaintiffand the Class. 82. As set forth in greater detail above, defendants, either directly or by aiding,abetting and/or conspiring to do so, have intentionally accessed without authorization and/orintentionally exceeded their authorization to access plaintiffs’ and the Class’ computer systemsthrough which electronic communications systems are provided, and obtained access to theirwire and electronic communications while in electronic storage in their computer systems and/orknowingly divulged the contents of such communications while in electronic storage, all withoutor exceeding the knowledge, authorization, or consent of plaintiffs and the Class. 83. Defendants’ planting and accessing of the cookie on each Class member’scomputer involves a stored communication concerning the Class member him or herself and nota communication concerning or intended for any third-party Web site. 84. Defendants’ conduct in accessing plaintiffs’ and Class members’ computerswithout authorization. or in excess of authorized access, was willful and intentional. 85. Pursuant to 18 U.S.C. �2707, plaintiff and the Class members are entitled to suchpreliminary or other equitable or declaratory relief as may be appropriate, at least $1,000 perClass member in statutory damages, actual and punitive damages, costs and reasonableattorneys’ fees, plus disgorgement of any profits earned by the defendants as a result of suchviolations of law. COUNT III (Violation of the Computer Fraud and Abuse Act, 18 U.S.C. �1030, et seq.) 86. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 87. Defendants, either directly or by aiding, abetting and/or conspiring to do so, haveintentionally and knowingly accessed and caused the transmission of a program, information,code, and/or command to plaintiffs’ and the Class’ computers without authorization in violationof 18 U.S.C. �1030. 88. Defendants, either directly or by aiding, abetting and/or conspiring to do so,have intentionally and knowingly accessed, without authorization and/or exceeding authorizedaccess, plaintiffs’ and the Class’ computers and obtained information from those personalcomputer systems as a result. 89. In so doing, defendants have intentionally caused damage to plaintiffs and theClass in the collective amount of over $50,000 and/or caused loss to plaintiffs and the Class in violation of 18 U.S.C. �1030. 90. Plaintiffs 7 and the Class’ computers are used in interstate and foreign commerceand communication as defined by 18 U.S.C. �1030. 91. As a direct and proximate result of defendants’ wrongful course of conduct,plaintiffs and the Class are entitled to remedies, including but not limited to, reimbursement fordamage or loss, injunctive relief, compensatory damages and other equitable relief, including thedisgorgement of any ill-gotten profits acquired by defendants as a result of violating the law, aswell as costs and attorneys’ fees. COUNT IV (Invasion of Privacy) 92. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 93. Plaintiffs had a reasonable expectation of privacy concerning their Internetcommunications. 94. Defendants have, for their own commercial gain, committed a serious andoffensive intrusion upon the privacy of plaintiffs and the Class in secretly gathering and usingtheir private, personal information. 95. Plaintiffs and the Class did not voluntarily authorize or consent to the disclosureor collection of their personal and private information by or to any of the defendants. In fact,plaintiffs and the Class had no idea that they were being monitored by defendants. 96. Plaintiffs and the Class have been injured and damaged by defendants’ conduct. 97. Pursuant to the common law, plaintiffs and the Class are entitled to the reliefrequested below, as appropriate. COUNT V (Trespass to Chattels ) 98. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 99. As set forth in greater detail above, defendants used, interfered with, andintermeddled with plaintiffs’ and the Class’ ownership of their personal property, namely, theircomputers, by secretly accessing and instructing their computers and by secretly depositing andaccessing cookies on their computer hard drives, and by secretly collecting personal data andinformation regarding each Class member contained in electronic storage on his or her computer. 100. Defendants’ conduct has also substantially interfered with plaintiffs’ and theClass’ right and ability to freely use their computers to explore the Internet, especially any healthor medical-related Web sites. 101. Plaintiffs and the Class have been injured and damaged by defendants’ conduct. 102. Pursuant to the common law, plaintiffs and the Class are entitled to the reliefrequested below, as appropriate. COUNT VI (Unjust Enrichment) 103. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 104. Plaintiffs and the Class have. through their unknowing and unwitting contributionof personal information to defendants, conferred a benefit on defendants. 105. Defendants have wrongfully and unlawfully enriched themselves to plaintiffs’and the Class’ detriment by engaging in the above-described wrongful course of conduct, namelysecretly intercepting, accessing and using plaintiffs’ sensitive personal information for their owncommercial benefit. 106. Defendants’ continued use, enjoyment, and retention of this wrongfully andunlawfully received information violates fundamental principles of justice, equity, and goodconscience. 107. As a direct and proximate result of defendants’ conduct, plaintiffs and the Classare entitled to the relief set forth below, as appropriate. COUNT VII (State Unfair and Deceptive Business Acts and Practices Statutes) 108. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 109. As set forth in greater detail above, defendants have, through their wrongfulcourse of conduct, violated Sections 349(a) and 350 of Article 22A of the New York GeneralBusiness Law and/or comparable consumer protection statutes in other states. 110. Defendants’ misrepresentations, omissions, and covert deceptive practices weredirected toward the consuming public through the use of popular and publicly-accessible Websites. 111. As set forth in greater detail above, defendants actions and omissions with regardto their tracking and profiling activities constitute acts, uses, or employment by defendants ofdeception, fraud, unconscionable commercial practices, false pretenses, false promises,misrepresentations, or the knowing concealment, suppression, or omission of material facts withthe intent that others rely upon such concealment, suppression, or omission in connection withdefendants above-described wrongful course of conduct, in violation of Sections 349( a) and 350of Article 22A of the New York General Business Law. 112. Plaintiffs and the Class were unaware of the deceptive and undisclosed nature ofdefendants above-described wrongful course of conduct. Had plaintiffs and the Class beenaware of the fact that defendants misrepresented and/or omitted regarding their tracking andprofiling activities, they would have taken steps to prevent defendants’ wrongful course ofconduct. As a result of their being deceived and misled by defendants, plaintiffs and the Classhave been injured and damaged in an amount to be determined at trial, and are entitled torecover, inter alia, their actual damages and their attorneys’ fees, pursuant to Sections 349(h)and 350(e) of the New York General Business Law. 113. By its above-described wrongful course of conduct, defendants knowingly orwillfully violated the New York General Business Law. As such, the Court should treble anydamage award entered against DoubleClick in this litigation up to a maximum of $1,000 perClass member. COUNT VIII (Declaratory Judgment) 1l4. Plaintiffs repeat and reallege the allegations contained in each of the aboveparagraphs as if fully set forth herein. 115. Due to the undetermined nature of legal relationship between plaintiffs and theClass and the defendants, plaintiffs and the Class seek a clarification of their legal rights and areentitled to a declaratory judgment that by commission of the acts and omissions alleged herein,the defendants have violated the Electronic Communications Privacy Act, Title I, 18 U.S.C. �2510 et seq., the Electronic Communications Privacy Act, Title II, 18 U.S.C. �2701 el seq., theComputer Fraud and Abuse Act, 18 U.S.C. � 1030 et seq., Sections 349 and 350 of New York’sGeneral Business Law and/or plaintiff’s and Class members’ common law rights against unjustenrichment, invasion of privacy, and trespass to chattels. REQUEST FOR RELIEF WHEREFORE, plaintiffs, on behalf of themselves and all others similarly situated,respectfully requests that the Court enter judgment in their favor and against defendants as follows: A. Determining that this action is properly maintainable as class action, certifying anappropriate Class, and certifying plaintiffs as Class Representatives; B. Declaring the acts and practices complained of herein to be in violation of thestatutory and common laws set forth above; C. Awarding plaintiffs and the Class statutory damages, compensatory damages,appropriate punitive damages, attorneys’ fees, and costs; D. Awarding plaintiffs and the Class pre-judgment and post-judgment interest asprovided by law; E. Awarding plaintiffs declaratory and injunctive relief as permitted by law or equityincluding, but not limited to entering a temporary, preliminary, and/or permanent Orderrequiring defendants to take such affirmative steps as are necessary to ensure both that theeffects of their unlawful information gathering acts and practices are eliminated and no longercontinue and that all class members are specifically notified of defendants’ information gatheringacts and practices and the existence and availability of a remedy to correct the illegal activitiesset forth above. At a minimum, such affirmative steps must include: (i) enjoining defendants from conducting their business through the unlawful acts andpractices described in this Complaint; and (ii) ordering the temporary and preliminary off-site storage, under strict independentmonitoring, of all information collected and/or shared as a result of defendants’ wrongfulconduct described herein in order to preserve the status quo pending the counts resolution of theissues raised by this Complaint; and (iii) upon completion of trial, ordering the destruction and/or purging of all personal andconfidential information collected or shared as a result of defendants’ wrongful conduct; F. Entering a Order requiring defendants to disgorge all monies they wrongfullyobtained as a result of the conduct alleged in this Complaint and all profits they derived as aresult of the unlawful acts or practices, to make restitution to plaintiffs and the Class of allmonies they acquired by means of any act or practice declared by this Court to be unlawful, andan Order imposing an asset freeze or constructive trust on such monies; and G. Awarding plaintiffs and the Class such other and further relief as may be just andproper. JURY TRIAL DEMAND Plaintiffs hereby demand a trial by jury of all issues and claims so triable. Dated: February 23, 2001 New York, New York BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP By: Seth R. Lesser, Esq. [SL.5560] Andrew M. Gschwind, Esq. 1285 Avenue of the Americas 33rd Floor New York, NY 10019 Telephone: 212/554-1400 MILBERG WEISS BERSHAD HYNES & LERACH LLP Michael M. Buchman, Esq. One Pennsylvania Plaza New York, NY 100l9-0165 Telephone: 212/594-5300 MILBERG WEISS BERSHAD HYNES & LERACH LLP Dennis Stewart, Esq. Alan M. Mansfield, Esq. William J. Doyle II, Esq. 600 West Broadway, Suite 1800 San Diego, CA 92l01 Telephone: 619/231-1058 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC Adam J. Levitt, Esq. 656 West Randolph Street Suite 500 WChicago, IL 60661 Telephone: 3l2/466-9200 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Daniel W. Krasner, Esq. David A.P. Brower, Esq. 270 Madison Avenue Ninth Floor New York, NY 10016 Telephone: 212/545-4600 MILLER FAUCHER AND CAFFERTY LLP Marvin A. Miller, Esq. 30 North LaSalle Street Suite 3200Chicago, IL 606032 Telephone: 312/782-4880 MILLER FAUCHER AND CAFFERTY LLP Bryan L. Clobes, Esq. 30 South 15th Street Suite 2500 Philadelphia, PA 19102 Telephone: 215/864-2800 FINKELSTEIN THOMPSON& LOUGHR.AN Douglas Thompson, Esq . Shannon Keniry, Esq. The Foundry Building, Suite 601 1055 Thomas Jefferson Street, N.W. Washington, DC 20007 Telephone: 202/337-8000 MAGER & WHITE. P .C. Ann D. White, Esq. 261 Old York Road, Suite 810 Jenkintown, PA 19046 Telephone: 215/481-0273 GOODKIND LABATON RUDOFF & SUCHAROW LLP Diane Zilka, Esq. 100 Park Avenue New York, NY 10017-5563 Telephone: 212/907-0700 BARRET JOHNSTON & PARSLEY George E. Barrett, Esq. 217 Second Ave, North Nashville, TN 37201-1601 Telephone: 615/244-2202 MILLER FAUCHER AND CAFFERTY LLP Marvin A. Miller, Esq. 30 North LaSalle Street Suite 3200 Chicago, n.. 606032 Telephone: 312/782-4880 MILLER FAUCHER AND CAFFERTY LLP Bryan L. Clobes, Esq. 30 South 15th Street Suite 2500 Philadelphia, P A 19102 Telephone: 215/864-2800 FINKELSTEIN THOMPSON& LOUGHR.AN Douglas Thompson, Esq . Shannon Keniry, Esq. The Foundry Building, Suite 601 1055 Thomas Jefferson Street, N.W. Washington, DC 20007 Telephone: 202/337-8000 MAGER & WHITE. P .C. Ann D. White, Esq. 261 Old York Road, Suite 810 Jenkintown, PA 19046 Telephone: 215/481-0273 GOODKIND LABATON RUDOFF & SUCHAROW LLP Diane Zilka, Esq. 100 Park Avenue New York, NY 10017.5563 Telephone: 212/907-0700 BARRET JOHNSTON & PARSLEY George E. Barrett, Esq. 217 Second Ave, North Nashville, TN 37201-1601 Telephone: 615/244-2202

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