A federal judge in Seattle last week awarded e-mail marketer Virtumundo $111,440 in legal fees and expenses against serial anti-spam litigant James Gordon.
Though the amount is not whopping from a business standpoint, it ought to be enough to knock Gordon’s little anti-spam shakedown racket out of existence. The decision also ought to make anti-spammers who think they can hit paydirt by filing flimsy lawsuits based on technicalities against legitimate marketers think twice.
In a searing opinion, the judge made clear that he believed Gordon was engaged in an anti-spam racket and should be deterred him from pursuing 10 other commercial-e-mail lawsuits he’s got cooking in that court alone.
“First, it is obvious that plaintiffs are testing their luck at making their ‘spam business’ extraordinarily lucrative by seeking statutory damages through a strategy of spam collection and serial litigation,” said the decision by Justice John C. Coughenour of the U.S. District Court of the Western District of Washington in Seattle.
“Clearly, plaintiffs are assembling a litigation factory, which, if successful, could net millions of dollars in profit, at least theoretically,” he wrote.
Coughenour added that Gordon’s suit against Virtumundo was “an excellent example of the ill-motivated, unreasonable, and frivolous type of lawsuit that justifies an award of attorneys’ fees.”
Gordon sued Virtumundo under the federal Can-Spam Act and Washington state law claiming the contents of the “from” lines of e-mails the company sent broke the law because they didn’t contain the name of the company or an employee.
According to Gordon, Virtumundo sent e-mails with names such as “Criminal Justice,” “Public Safety” and “Trade In” and addresses such as CriminalJustice@vm-mail.com, PublicSafetyDegrees@vmadmin.com and TradeIn@vm-mail.com in the from lines.
“In each of these emails … no actual sender is identified in the ‘From’ line in any meaningful sense,” said Gordon’s law firm in court papers.
A ruling in Gordon’s favor would have set a standard impossible to meet. How does one determine who “sent” an e-mail? Is it the marketing department? The service provider? Nigel, the anti-social guy in IT who wears black T-shirts?
However, the case didn’t even get as far as considering Gordon’s ridiculous claims.
The judge threw the suit out, ruling that Gordon could not establish that he had been adversely affected by Virtumundo’s e-mails, as required by the Can-Spam Act.
Not only was Gordon unharmed by the commercial e-mails he was receiving, he admitted in court that he benefited from them, wrote Coughenour.
What’s more, Gordon testified that his sole source of income for 2006 and 2007 was from settlements and disputes.
“Not only are plaintiffs not the type of entity that Congress intended to possess the limited private right of action in conferred on adversely affected bona fide Internet access service providers, they are not to type of plaintiff that should be allowed to pursue the strategy outlined above without financial cost,” wrote Coughenour.
“The context of this litigation and the context of the plaintiffs’ overall litigation strategy, involving at least a dozen federal actions, indicate that the plaintiffs are motivated by the prospect of multi-million-dollar statutory damages awards in exchange for their relatively paltry spam-collection and litigation costs.”
Translation: Gordon has been tying up the courts with a shakedown racket and now he’s gonna pay.
The irony here is that Gordon was essentially involved in a get-rich-quick scheme, but rather than clogging up the Internet with spam, he was clogging our judicial system.
As a result, he is the moral equivalent of a Viagra spammer. He simply chose another venue to pollute with his unwanted slop.
Fortunately, the judge saw this leech for what he is and hopefully sent a nice warning to all the other would-be anti-spam leeches out there, as well.
