gap complaint updated 10 18 05

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Complaint C:\DOCUMENTS AND SETTINGS\OWNER\DESKTOP\GAP COMPLAINT UPDATED 10-18-05.DOC 1

Mattaniah Eytan (State Bar No. 68561) Eric Schenk (State Bar No. 100193) LAW OFFICES OF MATTANIAH EYTAN 21 Tamal Vista Blvd., Suite 219 Corte Madera, CA 94925 Counsel for plaintiffs Gerard Angé; World Indigenous Network Corporation; and G.A.P. International SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA – UNLIMITED CIVIL JURISDICTION GERARD ANGÉ, an individual, G.A.P. INTERNATIONAL, INC., a California Corporation; and WORLD INDIGENOUS NETWORK CORP., a California corporation;

Plaintiffs,

v. ANTHONY TEMPLER, an individual; ATANDA WEB PRESENCE SERVICES; TOM KNIGHT, an individual; GAP INTERNATIONAL, INC., a Pennsylvania corporation; JON GREENAWALT, an individual and DOES 1 - 25, inclusive,

Defendants.

))))))))))))))))

Case No. COMPLAINT FOR DAMAGES FOR INTENTIONAL MISREPRESENTATION; CONCEALMENT; FALSE PROMISE; CONVERSION; INDUCING BREACH OF CONTRACT; INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS; NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS; CONSPIRACY; and for THE EQUITABLE REMEDIES OF AN ACCOUNTING AND DECLARATORY RELIEF.

Plaintiffs Gerard Angé; G.A.P. International, Inc., and World Indigenous Network

Corporation allege as follows:

THE PARTIES

1. Plaintiff Gerard Angé is an individual living in the State of California. Plaintiff

World Indigenous Network Corporation is a corporation licensed to do business in the State of

California. G.A.P. International is a Corporation, incorporated under the laws of the State of

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California with its principal offices in Palo Alto, California.

2. Plaintiffs are informed and believe, and on that basis allege, that defendant

Anthony Templer is an individual residing in the County of Alameda. They are informed and

believe that Atanda Web Presence Services is a business entity doing business in the County of

Alameda. Plaintiffs are unaware of the current location of Tom Knight, but believe him to be

engaged in business with Templer and Atanda, and to have engaged with them in the conspiracy

alleged in this Complaint. Plaintiffs are informed and believe that defendant Gap International,

Inc. is a corporation licensed to do business in the State of Pennsylvania, but that it has engaged

in business in the County of Alameda and that it is a part of the conspiracy alleged in this

complaint. And, finally, Jon Greenawalt, is a resident of the State of Pennsylvania who personally

participated in the conspiracy scheme alleged herein.

3. Plaintiffs are ignorant of the true names and capacities of the defendants sued

herein as Does 1 through 25, inclusive, and therefore sue these defendants by such fictitious

names. Plaintiffs will amend this complaint to allege their true names and capacities when

ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously

named defendants is responsible in some manner for the occurrences herein alleged, and that

plaintiffs’ damages as herein alleged were proximately caused by their conduct.

4. Plaintiffs are informed and believe, and on that basis allege, that at all times

relevant to this complaint each of the defendants was the agent of each of the remaining

defendants and, doing the things hereinafter alleged, was acting within the course and scope of

this agency, and with the permission of consent of the remaining defendants.

GENERAL ALLEGATIONS

5. Angé is the founder and chief executive officer of World Indigenous Network

Corporation (“WIN”). WIN founded WIN-Tv, the first national 24-hour satellite-based television

network dedicated to indigenous people around the world. By April 2002, as part of promoting

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WIN-Tv, WIN needed a dedicated website. One of WIN’s employees, defendant Knight,

volunteered to Angé that he had a friend who could provide the necessary web hosting services.

6. In or around April 2002, Templer, identified by Knight as the friend who could

provide web hosting services, came to WIN’s Corte Madera offices to promote his company,

Atanda, as a potential ISP host provider. Templer was well-informed about WIN-Tv’s potential

and claimed that he could provide the perfect web hosting services. He further claimed that,

because he believed that WIN-Tv would be extremely profitable, he would undertake initial work

on a costs only basis, subject to WIN’s agreement that Atanda would be WIN-Tv’s exclusive web

host. Impressed by Templer’s sales pitch, and relying on Knight’s recommendation of Templer on

WIN’s behalf, Angé, entered into an oral agreement with Templer that Atanda would provide all

of WIN-Tv’s web hosting services.

7. At the time the parties entered into the Agreement, Angé already had three existing

web domains he would have Atanda host: (1) www.gapinternational.com, the website for G.A.P.

International, a company that, for 18 years, had provided Live broadcast services to clients

ranging from Fortune 500 companies to the White House to major television networks (“G.A.P.”);

(2) www.worldindigenousnetwork.com, which was dedicated to promoting WIN-Tv’s interests;

and (3) www.rollerlights.com, a sports product website.

8. Immediately upon reaching the agreement, Templer began the process of transfer

the three domains from the original host to his own server. As part of the process, he advised

Angé that he had discovered two other domains that might be of interest to Angé : www.win-

tv.com and www.win-tv.net. He told Angé that the cost of acquiring these two sites would be the

registration fee and service charge to bring them over to Atanda’s server in plaintiffs’ name, on

plaintiffs’ behalf, and for plaintiffs’ benefit. Armed with this information, Angé explicitly

authorized Templer to arrange to purchase these domains. Atanda charged – and WIN paid –

$400.00 for the expenses associated with acquiring these two domains. Plaintiffs have since

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learned, and on that basis allege, that Templer and Atanda, rather than registering these domains

in WIN’s name, as agreed, registered them in Templer’s own name.

9. In the next eighteen months, G.A.P.’s and WIN’s websites functioned adequately

with Atanda as the host. During that year and a half period, WIN sought significant investment

money for WIN-Tv, and was making meaningful headway obtaining up to $50,000,000 in

potential investments.

10. In or around mid-October 2003, Angé received an email from Jon Greenawalt,

who identified himself as the Director of Web Development for defendant Gap International, Inc.

In the email, Greenawalt stated that his corporation was interested in purchasing the domain

known as www.gapinternational.com, and wanted to talk with me about the purchase. Angé put

the email on the back burner, intending to respond with a “no.”

11. Before Angé had a chance to get back to Greenawalt, in or around November

2003, Knight telephoned Angé to tell him that a third party had contacted Templer about buying

the domain known as www.gapinternational.com, which provided web services for G.A.P. Angé

told Knight to relay to Templer that G.A.P. had no interested in selling that domain.

12. The very next day, Angé was unable to access either his G.A.P. email service or

www.gapinternational.com. Since Atanda’s web hosting had been adequate, but sporadic at times,

and since Angé was focusing heavily on WIN’s business, Angé was not unduly concerned at what

he perceived as a temporary glitch in services.

13. Things came to a head in December 2003, however, when Angé attempted to load

his www.gapinternational.com webpage, only to see that an entirely different entity than G.A.P.

had control of that domain. It was then that he first learned that Templer and Atanda had

transferred the G.A.P. domain to Gap, a company that knew that Angé held title to that domain.

More discoveries followed.

14. Investigation revealed that, not only had Templer sold www.gapinternational.com

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to Gap, he had transferred to his own name the other domains identified in this Complaint, and

had taken all of them off line. Angé, WIN and WIN-Tv all immediately lost access to their

incoming and outgoing email, and their websites vanished. Since WIN was on the verge of

obtaining substantial funding (totaling approximately $50,000,000), this complete

communications blackout was devastating. It instantly and completely deprived plaintiffs of their

fundraising abilities.

15. In or around April 2004, Angé also discovered that a bank account purportedly in

Angé’s name had been established using a fictitious birth date. Angé then discovered that the

fictitious birth date is Knight’s birthdate. Angé is informed and believes, and on that basis alleges,

that Templer, with the assistance of Knight, funneled the money he received from selling the

various internet domains properly belonging to the various plaintiffs through this account

FIRST CAUSE OF ACTION

(Intentional Misrepresentation [C.C. § 1710(1)– against Templer , Atanda and Knight)

16. Plaintiffs incorporates paragraphs 1 through 15 of this Complaint as though fully

set forth herein.

17. Templer, Atanda and Knight represented to plaintiffs that Templer and Atanda

would provide complete web hosting services for plaintiffs’ benefit. Templer and Atanda further

represented that, with respect to the www.win-tv.com and www.win-tv.net domains, Atanda

would purchase them on behalf of WIN-Tv, transfer them to plaintiffs and manage them on

plaintiffs’ behalf.

18. Each and every one of these representations was false, and Templer, Atanda and

Knight knew they were false at the time made.

19. At the time the defendants made these false representations, they intended that

plaintiffs would rely on them and plaintiffs did in fact reasonably rely on them.

20. As a result of this reasonable reliance, plaintiffs suffered damage both in the form

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of the loss of their property, and in the form of monetary harm, in an amount to be proven at trial,

but in excess of this Court’s jurisdiction.

21. In doing the acts alleged here, defendants acted with malice, oppression, and fraud

(as defined under Civ. Code § 3294(c)), thereby warranting the award of punitive damages against

them.

SECOND CAUSE OF ACTION

(Concealment [C.C. § 1710(3)] – against Templer and Atanda)


set forth herein.

23. Plaintiffs had neither the facilities nor the expertise to host their own websites. In

contracting to host plaintiffs’ websites and perform related services, Templer and Atanda knew

that plaintiffs would be relying on Templer and Atanda to handle these matters professionally and

ethically, as it was impractical for plaintiffs to constantly check on the status of the webhosting on

their behalf. As such, Templer and Atanda necessarily assumed the roles of fiduciaries for

plaintiffs in connection with the webhosting and related services. Despite this fiduciary status,

Templer and Atanda intentionally failed to disclose to plaintiffs that, despite the fact that they had

billed and collected from plaintiffs the registration fee for the websites www.win-tv.com and

www.win-tv.net.these defendants took the sites in their own name and breached their obligation to

transfer the sites into plaintiff’s name.

24. Templer and Atanda intended to deceive plaintiffs by failing to disclose these facts,

so as to obtain the benefits of ownership of these websites at plaintiffs’ expense. Unaware of this

intended and actual deception, plaintiffs reasonably relied on Templer’s and Atanda’s

misrepresentations.

25. As a result of this reasonable reliance, plaintiffs suffered damage both in the form

of the loss of their property, and in the form of monetary harm, in an amount to be proven at trial,

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but in excess of this Court’s jurisdiction.



them.

THIRD CAUSE OF ACTION

(False Promise [C.C. § 1710(4)] – against Templer and Atanda)

27. Plaintiffs incorporates paragraphs 1 through 15 and 22 - 24 of this Complaint as

though fully set forth herein.

28. Plaintiffs Templer and Atanda promised plaintiffs (a) that they would transfer the

domain names known as www.win-tv.com and www.win-tv.net to Angé’s name or the name of

one of Angé’s related companies and (b) that they would maintain those two websites, as well as

www.gapinternational.com, www.worldindigenousnetwork.com, and www.rollerlights.com

plaintiffs’ benefit.

29. However, Templer and Atanda never intended to perform these promises, despite

the fact that they knew and intended that plaintiffs would rely on them.

30. Plaintiffs reasonably relied on Templer’s and Atanda’s false promises. When

Templer and Atanda did not perform as promised, plaintiffs suffered damage both in the form of

the loss of their property, and in the form of monetary harm, in an amount to be proven at trial, but

in excess of this Court’s jurisdiction.



them.

FOURTH CAUSE OF ACTION

(Conversion – against all defendants)


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set forth herein.

33. Plaintiffs owned or had the right to possess each of the web domains identified in

this Complaint.

34. Each of the defendants intentionally took possession of these websites for a

significant period of time; and prevented plaintiffs from having access to these websites for a

significant period of time.

35. Plaintiffs never consented to this interference with their ownership and possessory

rights. Instead, plaintiffs suffered significant damage both in the form of the loss of their property,

and in the form of monetary harm, in an amount to be proven at trial, but in excess of this Court’s

jurisdiction.



them.

FIFTH CAUSE OF ACTION

(Inducing Breach of Contract – against Gap International, Inc. and Jon Greenawalt and

Does 1 through 5)


set forth herein.

38. Plaintiffs had entered into a contract with Templer and Atanda to properly maintain

and protect plaintiffs’ interests in the GAP INTERNATIONAL website. Gap, Greenawalt, other

defendants and each of them knew of this contract and intended to cause Atanda and Templer to

breach the contract. And in fact, the conduct of Greenawalt, Gap other defendants and each of

them caused Templer and Atanda to breach the contract.

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39. As a result of the conduct of Gap, Greenawalt, other defendants and each of them,

plaintiffs suffered damage both in the form of the loss of their property, and in the form of

monetary harm, in an amount to be proven at trial, but in excess of this Court’s jurisdiction.



them.

SIXTH CAUSE OF ACTION

(Intentional Interference with Contractual Relations – against Gap International, Inc., Jon

Greenawalt and Does 3 through 8 )


set forth herein.

42. Plaintiffs had entered into a contract with Templer and Atanda whereby Templer

and Atanda would host plaintiffs’ websites, in general and, in particular, the website,

www.gapinternational.com and properly protect plaintiffs’ interests in those websites. Gap,

Greenawalt, other defendants, and each of them, knew of this contract as to

www.gapinternational.com and intended, through tortious means to cause Templer and Atanda to

breach the contract.. And in fact, the conduct of Gap, Greenawalt, other defendants and each of

them did result in the decision by Templer and Attanda to breach the contract with plaintiffs.

43. As a result of the conduct of Gap, Greenawalt, other defendants and each of them,

plaintiffs suffered damage both in the form of the loss of their property, and in the form of

monetary harm, in an amount to be proven at trial, but in excess of this Court’s jurisdiction.



them.

SEVENTH CAUSE OF ACTION

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(Intentional Interference with Prospective Economic Relations –

against all defendants)


set forth herein.

46. Plaintiffs and myriad investors interested in financing WIN-Tv were in the end

stages of negotiations that probably would have resulted in an economic benefit to plaintiffs.

47. The defendants knew of these investment relationships and intended to disrupt

them. To this end, defendants engaged in the wrongful conduct detailed in this complaint and

effectively disrupted the investment relationships.

48. As a result of defendants’ conduct, plaintiffs suffered damage both in the form of





them.

EIGHTH CAUSE OF ACTION

(Negligent Interference with Prospective Economic Relations –

against all defendants)


set forth herein.

51. Plaintiffs were in the end stages of negotiations with myriad prospective investors

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interested in financing WIN-Tv. Obtaining the participation of these investors would have more

than likely resulted in an economic benefit to plaintiffs.

52. The defendants knew or should have known of these investment relationships.

Further, defendants knew or should have known that these relationships would be disrupted if they

failed to act with reasonable care. Nevertheless, defendants failed to act with reasonable care and

engaged in the wrongful conduct described in this complaint. As a result of this conduct,

defendants effectively disrupted these investment relationships.

53. As a result of defendants’ conduct, plaintiffs suffered damage both in the form of



NINTH CAUSE OF ACTION

(Conspiracy [C.C.P. § 425.10] – against all defendants)


set forth herein.

55. On or about October 2003, the defendants knowingly and willfully conspired and

agreed among themselves to commit the wrongful acts alleged in this complaint.

56. The defendants committed these acts as part of, and in furtherance of, the

conspiracy and agreement alleged above.

57. Plaintiffs are informed and believe, and on that basis alleged, that the last overt act

committed as part of this conspiracy occurred on or about October 28, 2003, when Templer

created the fraudulent banking account to accommodate the funds Gap transferred to it when Gap

wrongfully took the www.gapinternational.com domain. Plaintiffs first became aware of these

wrongful acts in December 2003.

58. As a proximate result of these wrongful acts, plaintiffs suffered damage both in the

form of the loss of their property, and in the form of monetary harm, in an amount to be proven at

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trial, but in excess of this Court’s jurisdiction.



them.

TENTH CAUSE OF ACTION

(Accounting – against all defendants)


set forth herein.

61. In view of the nature of the causes of action set forth above, plaintiffs are entitled

to, and request equitable relief as against each defendant by way of equitable accounting. Such

accounting shall determine plaintiffs’ rights and financial entitlements, by way of damages or

other emoluments or their equivalent, including, potentially, imposition of one or several

constructive trusts in accordance with proofs to be submitted at the time of trial.

ELEVENTH CAUSE OF ACTION

(Declaratory Relief – against all defendants)


set forth herein.

63. A dispute has arisen between plaintiffs and the various defendants over the rights

of ownership and control of the various websites discussed above. Accordingly, plaintiffs demand

a declaration of the rights of each party with regard to said ownership and control.

PRAYER

WHEREFORE, plaintiffs pray judgment against defendants, and each of them, as follows:

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64. For the return of all domain names wrongfully taken from plaintiffs;

65. For damages for the proximate and foreseeable loss resulting from defendants’

wrongful conduct in an amount to be determined at trial.

66. For punitive and exemplary damages;

67. For costs of suit herein incurred; and

68. For an accounting;

69. For such other and further relief as the court may deem proper.

LAW OFFICES OF MATTANIAH EYTAN

Date: October 17, 2005 By:

Eric Schenk Attorneys for Plaintiffs

gap complaint updated 10 18 05

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