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INDEX NO. 153528/2012
NYSCEF DOC. NO. 1 RECEIVED NYSCEF 06/11/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
~
Index No, 153528/12
US OIL & GAS HOLDINGS LLC, SANFORD
GOLDFARB, ROBERT VALENTINO and
BARRY CHARLES.
Petitioners,
-against- PETITION
FOR PRE-ACTION
GODADDY.COM, LLC, HOSTING SERVICES, INC. DISCLOSURE
and DOMAINS BY PROXY, LLC,
Respondents
Petitioners US Oil & Gas Holdings LLC “US Oil & Gas”), Sanford Goldfarb
(“Goldfarb”), Robert Valentino (“Valentino”), and Barry Charles (“Charles,” or together with
Goldfarb and Valentino, the “Principals,” and collectively with US Oil & Gas, the “Petitioners”).
by and through their attorneys, Stern Tannenbaum & Bell LLP, as and for their Petition for Pre-
Action Disclosure, allege as follows
The Parties
1 US Oil & Gas is a Delaware limited liability company with a principal place of
business located at | Norih End Avenue, New York, New York.
2. US Oil & Gas is an investment partnership that acquires ownership interests in oil
and natural gas wells and partners with well known operators who are acknowledged leaders in
various niche exploration and development projects located in Oklahoma and Texas. The
remaining Petitioners are the Principals of US Oil & Gas.
3 Goldfarb is an individual residing in Nassau County. Goldfarb is a member of US
Oil & Gas.
4 Valentino is an individual residing in New York County. Valentino is a member
of US Oil & Gas.
5 Charles is an individual residing in Nassau County. Charles is a member of US
Oil & Gas.
6 Upon information and belief, respondent GoDaddy.com, LLC (“Go Daddy”) is a
Delaware limited liability company with a principal place of business located at 14455 North
Hayden Road, Suite 219, Scottsdale, Arizona 85260.
7. Upon information and belief, respondent Hosting Services, Inc. (“Hosting
Services”) is a Delaware corporation with a principal place of business located at 164 N.
Gateway Drive, Providence, Utah 84332.
8 Upon information and belief, respondent Domains By Proxy, LLC (“DBP,” and
sometimes with Go Daddy and Hosting Services, the “Subpoenaed Parties”) is a Delaware
limited liability company with a principal place of business located at 15111 North Hayden
Road, Suite 160, PMB 353, Scottsdale, Arizona 8260.
Preliminary Statement
9 This special proceeding seeks an order (a) issuing a pre-action Subpoena Duces
Tecum, pursuant to CPLR 3102(c), or authorizing Petitioners to do so, to each of the
Subpoenaed Parties directing them each to provide certain Disclosures (as hereinafter defined
and as defined in the proposed subpoenas (the “Subpoenas”) annexed hereto as Exhibits A, B
and C); and (b) awarding Petitioners such other and further relief as this Court may deem just
and proper, including, but not limited to, an award of Petitioners’ attorneys’ fees, costs and
disbursements.
10. The Disclosures seek information required to enable Petitioners to ascertain the
identity of the persons or entities responsible for publishing the false and defamatory article
about them entitled “The Ponzi Scheme Lessons” (the “Article”), which was published on the
website, ginvestor.biz (“GInvestor’”), on or about November 28, 2011, as well as the number of
“hits” or views of the Article. (The Article, together with screenshots from the Glnvestor
website, is annexed hereto as Exhibit D.) These Disclosures are necessary to allow Petitioners
to identify potential defendants and frame a complaint for defamation per se.
11. Absent the Disclosures, the parties responsible for this patent wrong against the
Petitioners will continue to hide their identity and avoid facing the consequences of their
wrongful conduct. Further, thus emboldened, they may continue to defame and injure the
Petitioners using GInvestor or domains ginvestor.net, ginvestor.org and ginvestor.info (the
“Related Domains”), which, upon information and belief, are under common ownership and
contro! with GInvestor.
The Defamatory Article
12, The Article, directly and through innuendo, is defamatory per se regarding US Oil
& Gas and its Principals in that it clearly states as fact in every paragraph, and even in its
headline, that Petitioners are engaged in illegal, unethical and unprofessional activities and are
unfit to engage in the business of US Oil & Gas.
13. For example, and without limitation, US Oil & Gas is baselessly, and repeatedly,
referred to as a “Ponzi scheme,” and Messrs. Goldfarb, Valentino and Charles are all described
“scurrilous” and as “fraudsters.” The Article states: “[i]f you have not already heard of US
Oil and Gas Holdings LLC, it is time to bring yet another Ponzi scheme to your attention.”
14. The Article further refers to “the continued huckstering of Sanford Goldfarb” and
claims that “[b]oldfaced lies were substituted for corporate governance and transparent
reporting. Mr. Galdfarb did not re-invent the wheel in his Ponzi scheme, he merely connected
the dots of Ponzi schemes executed by fraudsters gone before him.”
is. The Article also states that Mr. Goldfarb “refers to a ‘basket of income producing
wells’ to give the investors a false sense of security when, in fact, he knows that not as [sic]
single well was drilled.”
16. Perhaps most outrageously, the Article asserts as fact that Mr. Goldfarb diverted
$16.7 million of the investments into his personal holdings.
17, Each and every one of the defamatory statements in the Article is false.
18. The Article is defamatory and defamatory per se of and concerning each and all of
the Petitioners.
19. Compounding the obvious and presumed damage caused or threatened to be
caused by the Article, it egregiously purports to be an “Exclusive from Axcess News,”
reputable news aggregator.
20. In this way, the author or authors of the Article sought to lend greater credence to
the defamatory statements regarding Petitioners.
21. However, this statement too is absolutely false; Axcess News has confirmed that
the Article never appeared on its website. (Exhibit E.)
Petitioners’ Discovery of the Article and Remedial Efforts
22. After Petitioners learned of the Article, Petitioners attempted to determine who
was responsible for the publication of the defamation against them. This effort has hit a dead
end.
23. Publicly available sources disclose that the domain name, ginvestor.biz, (herein
before “GInvestor”), was registered on or about September 30, 2011 through Go Daddy, shortly
before the Article was published on the ginvestor.biz website.
24. The Related Domains, ginvestor.net; ginvestor.org and ginvestor.info, were also
registered the same day with Go Daddy.
25. The rules established by the Internet Corporation for Assigned Names and
Numbers (“ICANN”), require that identifying information about registrants of domain names
(and other relevant information, including the person or entity who is responsible for paying for
the domain) be made public and available on a “Whois” directory.
26. However, the “Whois” directory for GInvestor discloses only that the “sponsoring
Registrar” of the domain is Go Daddy and that the registration of the domain is “private” and is
held in the name of DBP.
27. Upon information and belief, DBP is an affiliate of Go Daddy and its services are
offered to customers of Go Daddy specifically :o enable them to avoid public disclosure of their
identities. The Domains by Proxy Domain Name Proxy Agreement (Exhibit F) provides:
The business of DBP is to maximize Your right to privacy to the greatest
extent possible. When You subscribe to DBP’s private registration service
through a DBP-affiliated Registrar [such as Go Daddy], each and any
available domain name registration You designate will thereafter be
registered in the name of DBP, as Registrant. In exchange for DBP
becoming the Registrant of each domain name registration on Your
Behalf, DBP shall keep Your name, postal address, email address, phone
and fax numbers confidential, subject to Section 4 of this Agreement.
28. Section 4 of the Domains by Proxy Domain Name Proxy Agreement reserves to
DBP the right to reveal the actual identity of the registrant in response to a lawful subpoena.
29, The “Whois” directory also discloses that the GInvestor website is hosted by
Midphase.com which, upon information and belief, is the d/b/a of or is owned by Hosting
Services, one of the Subpoenaed Parties.
30. As set forth in detail below, in an effort to have the offending Article removed
from GInvestor, counsel for Petitioners wrote to each of the Subpoenaed Parties demanding,
inter alia, that the Article be removed, that the Subpoenaed Parties identify the person or
persons responsible for registering the GInvestor domain name and the Related Domain names,
and, so as to enable Petitioners to have an idea of the extent of the damage to their reputations,
to disclose how many visits or “hits” there were to the Article.
31. By letter dated May 15, 2012, a copy of which is annexed hereto as Exhibit G,
counsel for Petitioners advised Go Daddy of the Article and its defamatory content and
demanded that Go Daddy remove the Article and identify the persons or entities behind or
responsible for the Article, for registering the Glnvestor domain name and for that website, and
for registering the Related Domains and for those websites. This letter also noted that the
presence of the Article on the domain was a violation of the Go Daddy Universal Terms of
Service Agreement, which prohibits customers from defaming others.
32. Go Daddy’s response, a copy of which is annexed hereto as Exhibit H, directed
counsel for Petitioners to contact the web hosting provider, i.e. Hosting Services through
Midphase.com, to have the Article removed.
33. Go Daddy failed and refused to identify the persons and/or entities who registered
the domain Glnvestor or the Related Domains, stating: “[c]urrently GoDaddy.com does not
provide customer information under any circumstance except with a properly served subpoena.”
(Exhibit H.)
34. Go Daddy’s Civil Subpoena Policy, a copy of which is annexed hereto as Exhibit
I, states, “If you seek the identity or account information of a Go Daddy customer in connection
with a civil legal matter, you must fax, mail, or serve GoDaddy.com, LLC with a valid
subpoena.”
35. By letter dated May 15, 2012, a copy of which is annexed hereto as Exhibit J,
counsel for Petitioners advised DBP of the Article and its defamatory content, and demanded
that DBP remove the Article and identify the persons or entities behind or responsible for the
Article, for registering the GInvestor domain name and for that website, and for registering the
Related Domains and for those websites. This letter also noted that the presence of the Article
on the domain was a violation of DBP’s Domain Name Proxy Agreement which prohibits its
customers from using its services to “...defame, embarrass, harm, abuse, threaten or harass
third parties...” (Exhibit F.)
36. Section 4(i) of the Domains by Proxy Domain Name Proxy Agreement grants
DBP the “absolute right” to close the customer’s account with DBP and thereby expose the
customer's identity as the registrant of the domain name to third parties. (Id.)
37. DBP’s response, a copy of which is annexed hereto as Exhibit K, like Go Daddy’s
response, directed counsel for Petitioners to contact the web hosting provider to have the
Article removed. DBP identified the web hosting provider as Hosting Services and provided its
contact information.
38. DBP also failed and refused to provide the information about the actual registrant
of GInvestor or the Related Domains, stating, “...should you still desire our customer’s identity,
we will require a properly served subpoena.” (Exhibit K.)
39, Following DBP’s subsequent adv:ce, counsel for Petitioners also submitted an
online claim form seeking to remove the Article. (Exhibit L.)
40. By letter dated May 15, 2012, a copy of which is annexed hereto as Exhibit M,
counsel for Petitioners advised Hosting Services, the host, through Midphase.com, of the
GInvestor website, of the Article and its defamatory content and demanded that Hosting
Services remove the Article and identify the persons or entities behind or responsible for the
Article and for the Glnvestor website. This letter also noted that the Article was in violation of
the Midphase Terms and Conditions of Use which state that Midphase will not provide services
to customers that use its services to distribute defamatory content.
41. On May 17, 2012, Hosting Services responded and stated that it had notified its
client regarding this issue and gave them 48 hours to remove the Article. A copy of Hosting
Services’ response is annexed hereto as Exhibit N.
42. The Article was removed from the GInvestor website as of May 18, 2012.
43. However, like Go Daddy and DBP, Hosting Services failed to disclose (i) the
identity of the persons and/or entities that maintain the GInvestor website or authored and
posted the Article to Glnvestor; and (ii) the number of times that the Article was viewed on
GInvestor.
4A, In addition, counsel for Petitioners also wrote to the email address for GInvestor
provided in the “Whois” directory, namely, ginvestor.biz@domainsbyproxy.com. Counsel did
not receive any response.
45. The Subpoenaed Parties have refused to identify the actual registrant of the
domain, GInvestor, or of the Related Domains, the person or persons who purchased the
GInvestor domain, or the Related Domains, the identity of the persons and/or entities who
maintain any associated websites, or the person or persons who authored and posted the Articl
to Ginvestor. Absent this information, Petitioners are unable to identify a defendant to proceed
against to recover for the injury to their reputations caused by the defamatory Article.
AS AND FOR A FIRST CLAIM FOR RELIEF
46. Petitioners hereby repeat and reallege the allegations contained in paragraphs 1
through 45 above as though fully set forth herein.
47. Petitioners are entitled to an order issuing a pre-action Subpoena Duces Tecum,
pursuant to CPLR 3102(c), to each of the Subpoenaed Parties.
48. Petitioners have a meritorious cause of action against the author and/or publisher
of the Article in that its contents are defamatory and defamatory per se. The pre-action
disclosure sought in the Petition is material and necessary to identify any prospective
defendants in a contemplated defamation action and aid Petitioners in framing their complaint.
49. Specifically, Petitioners respectfully request that each pre-action Subpoena Duces
Tecum direct each of the Subpoenaed Parties to provide the following information and
documents:
Q) For all periods since and including June 1, 2011, the identity of all
entities and/or persons who would have been designated as the Registrant,
Administrative Contact, Billing Contact and Technical Contact for the domain
names (a) GInvestor, and (b) each of the Related Domains, on publicly available
WHOIS directories, or whose identities would otherwise be a matter of public
record, absent each of their respective uses of DBP’s private registration services,
including all addresses, phone numbers, facsimile numbers and electronic mail
addresses for each entity and/or person;
(2) For all periods since and including June 1, 2011, the identity of all
entities and/or persons who purchased and/or registered for DBP’s private
registration services for or in connection with (a) Ginvestor, and (b) each of the
Related Domains, including all addresses, phone numbers, facsimile numbers and
electronic mail addresses for each entity and/or person;
Q) For all periods since and including June 1, 2011, the identity of all
Internet Protocol addresses (the “IP Addresses”) that interacted with the host(s) of
(a) the Ginvestor website, and (b) any website using any of the Related Domains,
and/or which were used to post and/or edit the Article;
(4) The number of times that the Article was viewed on GInvestor;
and
6) All documents reflecting the information in requests (1) through
(4) above;
(Requests (1) through (5) collectively, the “Disclosures.”)
50. It is critically important that the pre-action Disclosures be ordered and obtained
by Petitioners as soon as possible.
51. First, pursuant to CPLR 215(3), the statute of limitations for an action to recover
damages for libel is only one-year and Petitioners need to ensure that they ascertain the
identities of prospective defendants in order to timely commence an action against them.
52. Second, some of the Disclosures may not be preserved for very much longer.
Pursuant to 18 U.S.C. § 2703(£)(2), the Subpoenaed Parties are only required to retain
electronic records for 90 days, Although counsel for Petitioners has demanded in writing that
each of the Subpoenaed Parties preserve their records in connection with this matter, it is
possible that some records may not been available much longer. (Exhibits O, P and Q.)
53. No prior application has previously been made to this or any other Court for the
relief sought herein.
WHEREFORE, Petitioners respectfully request that this Court grant the Petition
in its entirety and (a) issue a pre-action Subpoena Duces Tecum, pursuant to CPLR 3102(c), or
authorize Petitioners to do so, to each of the Subpoenaed Parties directing them to provide the
Disclosures in the form annexed as Exhibits A, B and C; and (b) award Petitioners such other
and further relief as this Court may deem just and proper, including, but not limited to, an award
of Petitioners’ attorneys’ fees, costs and disbursements.
Dated: New York, New York
June 11, 2012
STERN TANNENBAUM & BELL LLP
letened
mf
aren §. Frieryhan
lonathan tler
xington enue
New York, N. 10168
(212) 792-8484
Attorneys for Petitioners
10
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INDEX NO. 153528/2012 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 06/11/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ~ Index No, 153528/12 US OIL & GAS HOLDINGS LLC, SANFORD GOLDFARB, ROBERT VALENTINO and BARRY CHARLES. Petitioners, -against- PETITION FOR PRE-ACTION GODADDY.COM, LLC, HOSTING SERVICES, INC. DISCLOSURE and DOMAINS BY PROXY, LLC, Respondents Petitioners US Oil & Gas Holdings LLC “US Oil & Gas”), Sanford Goldfarb (“Goldfarb”), Robert Valentino (“Valentino”), and Barry Charles (“Charles,” or together with Goldfarb and Valentino, the “Principals,” and collectively with US Oil & Gas, the “Petitioners”). by and through their attorneys, Stern Tannenbaum & Bell LLP, as and for their Petition for Pre- Action Disclosure, allege as follows The Parties 1 US Oil & Gas is a Delaware limited liability company with a principal place of business located at | Norih End Avenue, New York, New York. 2. US Oil & Gas is an investment partnership that acquires ownership interests in oil and natural gas wells and partners with well known operators who are acknowledged leaders in various niche exploration and development projects located in Oklahoma and Texas. The remaining Petitioners are the Principals of US Oil & Gas. 3 Goldfarb is an individual residing in Nassau County. Goldfarb is a member of US Oil & Gas. 4 Valentino is an individual residing in New York County. Valentino is a member of US Oil & Gas. 5 Charles is an individual residing in Nassau County. Charles is a member of US Oil & Gas. 6 Upon information and belief, respondent GoDaddy.com, LLC (“Go Daddy”) is a Delaware limited liability company with a principal place of business located at 14455 North Hayden Road, Suite 219, Scottsdale, Arizona 85260. 7. Upon information and belief, respondent Hosting Services, Inc. (“Hosting Services”) is a Delaware corporation with a principal place of business located at 164 N. Gateway Drive, Providence, Utah 84332. 8 Upon information and belief, respondent Domains By Proxy, LLC (“DBP,” and sometimes with Go Daddy and Hosting Services, the “Subpoenaed Parties”) is a Delaware limited liability company with a principal place of business located at 15111 North Hayden Road, Suite 160, PMB 353, Scottsdale, Arizona 8260. Preliminary Statement 9 This special proceeding seeks an order (a) issuing a pre-action Subpoena Duces Tecum, pursuant to CPLR 3102(c), or authorizing Petitioners to do so, to each of the Subpoenaed Parties directing them each to provide certain Disclosures (as hereinafter defined and as defined in the proposed subpoenas (the “Subpoenas”) annexed hereto as Exhibits A, B and C); and (b) awarding Petitioners such other and further relief as this Court may deem just and proper, including, but not limited to, an award of Petitioners’ attorneys’ fees, costs and disbursements. 10. The Disclosures seek information required to enable Petitioners to ascertain the identity of the persons or entities responsible for publishing the false and defamatory article about them entitled “The Ponzi Scheme Lessons” (the “Article”), which was published on the website, ginvestor.biz (“GInvestor’”), on or about November 28, 2011, as well as the number of “hits” or views of the Article. (The Article, together with screenshots from the Glnvestor website, is annexed hereto as Exhibit D.) These Disclosures are necessary to allow Petitioners to identify potential defendants and frame a complaint for defamation per se. 11. Absent the Disclosures, the parties responsible for this patent wrong against the Petitioners will continue to hide their identity and avoid facing the consequences of their wrongful conduct. Further, thus emboldened, they may continue to defame and injure the Petitioners using GInvestor or domains ginvestor.net, ginvestor.org and ginvestor.info (the “Related Domains”), which, upon information and belief, are under common ownership and contro! with GInvestor. The Defamatory Article 12, The Article, directly and through innuendo, is defamatory per se regarding US Oil & Gas and its Principals in that it clearly states as fact in every paragraph, and even in its headline, that Petitioners are engaged in illegal, unethical and unprofessional activities and are unfit to engage in the business of US Oil & Gas. 13. For example, and without limitation, US Oil & Gas is baselessly, and repeatedly, referred to as a “Ponzi scheme,” and Messrs. Goldfarb, Valentino and Charles are all described “scurrilous” and as “fraudsters.” The Article states: “[i]f you have not already heard of US Oil and Gas Holdings LLC, it is time to bring yet another Ponzi scheme to your attention.” 14. The Article further refers to “the continued huckstering of Sanford Goldfarb” and claims that “[b]oldfaced lies were substituted for corporate governance and transparent reporting. Mr. Galdfarb did not re-invent the wheel in his Ponzi scheme, he merely connected the dots of Ponzi schemes executed by fraudsters gone before him.” is. The Article also states that Mr. Goldfarb “refers to a ‘basket of income producing wells’ to give the investors a false sense of security when, in fact, he knows that not as [sic] single well was drilled.” 16. Perhaps most outrageously, the Article asserts as fact that Mr. Goldfarb diverted $16.7 million of the investments into his personal holdings. 17, Each and every one of the defamatory statements in the Article is false. 18. The Article is defamatory and defamatory per se of and concerning each and all of the Petitioners. 19. Compounding the obvious and presumed damage caused or threatened to be caused by the Article, it egregiously purports to be an “Exclusive from Axcess News,” reputable news aggregator. 20. In this way, the author or authors of the Article sought to lend greater credence to the defamatory statements regarding Petitioners. 21. However, this statement too is absolutely false; Axcess News has confirmed that the Article never appeared on its website. (Exhibit E.) Petitioners’ Discovery of the Article and Remedial Efforts 22. After Petitioners learned of the Article, Petitioners attempted to determine who was responsible for the publication of the defamation against them. This effort has hit a dead end. 23. Publicly available sources disclose that the domain name, ginvestor.biz, (herein before “GInvestor”), was registered on or about September 30, 2011 through Go Daddy, shortly before the Article was published on the ginvestor.biz website. 24. The Related Domains, ginvestor.net; ginvestor.org and ginvestor.info, were also registered the same day with Go Daddy. 25. The rules established by the Internet Corporation for Assigned Names and Numbers (“ICANN”), require that identifying information about registrants of domain names (and other relevant information, including the person or entity who is responsible for paying for the domain) be made public and available on a “Whois” directory. 26. However, the “Whois” directory for GInvestor discloses only that the “sponsoring Registrar” of the domain is Go Daddy and that the registration of the domain is “private” and is held in the name of DBP. 27. Upon information and belief, DBP is an affiliate of Go Daddy and its services are offered to customers of Go Daddy specifically :o enable them to avoid public disclosure of their identities. The Domains by Proxy Domain Name Proxy Agreement (Exhibit F) provides: The business of DBP is to maximize Your right to privacy to the greatest extent possible. When You subscribe to DBP’s private registration service through a DBP-affiliated Registrar [such as Go Daddy], each and any available domain name registration You designate will thereafter be registered in the name of DBP, as Registrant. In exchange for DBP becoming the Registrant of each domain name registration on Your Behalf, DBP shall keep Your name, postal address, email address, phone and fax numbers confidential, subject to Section 4 of this Agreement. 28. Section 4 of the Domains by Proxy Domain Name Proxy Agreement reserves to DBP the right to reveal the actual identity of the registrant in response to a lawful subpoena. 29, The “Whois” directory also discloses that the GInvestor website is hosted by Midphase.com which, upon information and belief, is the d/b/a of or is owned by Hosting Services, one of the Subpoenaed Parties. 30. As set forth in detail below, in an effort to have the offending Article removed from GInvestor, counsel for Petitioners wrote to each of the Subpoenaed Parties demanding, inter alia, that the Article be removed, that the Subpoenaed Parties identify the person or persons responsible for registering the GInvestor domain name and the Related Domain names, and, so as to enable Petitioners to have an idea of the extent of the damage to their reputations, to disclose how many visits or “hits” there were to the Article. 31. By letter dated May 15, 2012, a copy of which is annexed hereto as Exhibit G, counsel for Petitioners advised Go Daddy of the Article and its defamatory content and demanded that Go Daddy remove the Article and identify the persons or entities behind or responsible for the Article, for registering the Glnvestor domain name and for that website, and for registering the Related Domains and for those websites. This letter also noted that the presence of the Article on the domain was a violation of the Go Daddy Universal Terms of Service Agreement, which prohibits customers from defaming others. 32. Go Daddy’s response, a copy of which is annexed hereto as Exhibit H, directed counsel for Petitioners to contact the web hosting provider, i.e. Hosting Services through Midphase.com, to have the Article removed. 33. Go Daddy failed and refused to identify the persons and/or entities who registered the domain Glnvestor or the Related Domains, stating: “[c]urrently GoDaddy.com does not provide customer information under any circumstance except with a properly served subpoena.” (Exhibit H.) 34. Go Daddy’s Civil Subpoena Policy, a copy of which is annexed hereto as Exhibit I, states, “If you seek the identity or account information of a Go Daddy customer in connection with a civil legal matter, you must fax, mail, or serve GoDaddy.com, LLC with a valid subpoena.” 35. By letter dated May 15, 2012, a copy of which is annexed hereto as Exhibit J, counsel for Petitioners advised DBP of the Article and its defamatory content, and demanded that DBP remove the Article and identify the persons or entities behind or responsible for the Article, for registering the GInvestor domain name and for that website, and for registering the Related Domains and for those websites. This letter also noted that the presence of the Article on the domain was a violation of DBP’s Domain Name Proxy Agreement which prohibits its customers from using its services to “...defame, embarrass, harm, abuse, threaten or harass third parties...” (Exhibit F.) 36. Section 4(i) of the Domains by Proxy Domain Name Proxy Agreement grants DBP the “absolute right” to close the customer’s account with DBP and thereby expose the customer's identity as the registrant of the domain name to third parties. (Id.) 37. DBP’s response, a copy of which is annexed hereto as Exhibit K, like Go Daddy’s response, directed counsel for Petitioners to contact the web hosting provider to have the Article removed. DBP identified the web hosting provider as Hosting Services and provided its contact information. 38. DBP also failed and refused to provide the information about the actual registrant of GInvestor or the Related Domains, stating, “...should you still desire our customer’s identity, we will require a properly served subpoena.” (Exhibit K.) 39, Following DBP’s subsequent adv:ce, counsel for Petitioners also submitted an online claim form seeking to remove the Article. (Exhibit L.) 40. By letter dated May 15, 2012, a copy of which is annexed hereto as Exhibit M, counsel for Petitioners advised Hosting Services, the host, through Midphase.com, of the GInvestor website, of the Article and its defamatory content and demanded that Hosting Services remove the Article and identify the persons or entities behind or responsible for the Article and for the Glnvestor website. This letter also noted that the Article was in violation of the Midphase Terms and Conditions of Use which state that Midphase will not provide services to customers that use its services to distribute defamatory content. 41. On May 17, 2012, Hosting Services responded and stated that it had notified its client regarding this issue and gave them 48 hours to remove the Article. A copy of Hosting Services’ response is annexed hereto as Exhibit N. 42. The Article was removed from the GInvestor website as of May 18, 2012. 43. However, like Go Daddy and DBP, Hosting Services failed to disclose (i) the identity of the persons and/or entities that maintain the GInvestor website or authored and posted the Article to Glnvestor; and (ii) the number of times that the Article was viewed on GInvestor. 4A, In addition, counsel for Petitioners also wrote to the email address for GInvestor provided in the “Whois” directory, namely, ginvestor.biz@domainsbyproxy.com. Counsel did not receive any response. 45. The Subpoenaed Parties have refused to identify the actual registrant of the domain, GInvestor, or of the Related Domains, the person or persons who purchased the GInvestor domain, or the Related Domains, the identity of the persons and/or entities who maintain any associated websites, or the person or persons who authored and posted the Articl to Ginvestor. Absent this information, Petitioners are unable to identify a defendant to proceed against to recover for the injury to their reputations caused by the defamatory Article. AS AND FOR A FIRST CLAIM FOR RELIEF 46. Petitioners hereby repeat and reallege the allegations contained in paragraphs 1 through 45 above as though fully set forth herein. 47. Petitioners are entitled to an order issuing a pre-action Subpoena Duces Tecum, pursuant to CPLR 3102(c), to each of the Subpoenaed Parties. 48. Petitioners have a meritorious cause of action against the author and/or publisher of the Article in that its contents are defamatory and defamatory per se. The pre-action disclosure sought in the Petition is material and necessary to identify any prospective defendants in a contemplated defamation action and aid Petitioners in framing their complaint. 49. Specifically, Petitioners respectfully request that each pre-action Subpoena Duces Tecum direct each of the Subpoenaed Parties to provide the following information and documents: Q) For all periods since and including June 1, 2011, the identity of all entities and/or persons who would have been designated as the Registrant, Administrative Contact, Billing Contact and Technical Contact for the domain names (a) GInvestor, and (b) each of the Related Domains, on publicly available WHOIS directories, or whose identities would otherwise be a matter of public record, absent each of their respective uses of DBP’s private registration services, including all addresses, phone numbers, facsimile numbers and electronic mail addresses for each entity and/or person; (2) For all periods since and including June 1, 2011, the identity of all entities and/or persons who purchased and/or registered for DBP’s private registration services for or in connection with (a) Ginvestor, and (b) each of the Related Domains, including all addresses, phone numbers, facsimile numbers and electronic mail addresses for each entity and/or person; Q) For all periods since and including June 1, 2011, the identity of all Internet Protocol addresses (the “IP Addresses”) that interacted with the host(s) of (a) the Ginvestor website, and (b) any website using any of the Related Domains, and/or which were used to post and/or edit the Article; (4) The number of times that the Article was viewed on GInvestor; and 6) All documents reflecting the information in requests (1) through (4) above; (Requests (1) through (5) collectively, the “Disclosures.”) 50. It is critically important that the pre-action Disclosures be ordered and obtained by Petitioners as soon as possible. 51. First, pursuant to CPLR 215(3), the statute of limitations for an action to recover damages for libel is only one-year and Petitioners need to ensure that they ascertain the identities of prospective defendants in order to timely commence an action against them. 52. Second, some of the Disclosures may not be preserved for very much longer. Pursuant to 18 U.S.C. § 2703(£)(2), the Subpoenaed Parties are only required to retain electronic records for 90 days, Although counsel for Petitioners has demanded in writing that each of the Subpoenaed Parties preserve their records in connection with this matter, it is possible that some records may not been available much longer. (Exhibits O, P and Q.) 53. No prior application has previously been made to this or any other Court for the relief sought herein. WHEREFORE, Petitioners respectfully request that this Court grant the Petition in its entirety and (a) issue a pre-action Subpoena Duces Tecum, pursuant to CPLR 3102(c), or authorize Petitioners to do so, to each of the Subpoenaed Parties directing them to provide the Disclosures in the form annexed as Exhibits A, B and C; and (b) award Petitioners such other and further relief as this Court may deem just and proper, including, but not limited to, an award of Petitioners’ attorneys’ fees, costs and disbursements. Dated: New York, New York June 11, 2012 STERN TANNENBAUM & BELL LLP letened mf aren §. Frieryhan lonathan tler xington enue New York, N. 10168 (212) 792-8484 Attorneys for Petitioners 10