Suing emailers for a living

by Walter Olson on June 11, 2007

If you’re going to try to make a regular income out of suing commercial emailers alleging violations of the anti-spam laws, you may wish to be careful about your methods. Last month a federal court “threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo. … Just as significantly, the judge also ruled the defendants can recover attorney fees.” Judge John Coughenour of the Western District of Washington ruled that that headers and “from” lines on the emails in question were not unlawfully deceptive, as Gordon had argued; Gordon had sought more than $2.3 million in damages over tens of thousands of Virtumundo emails. (Ken Magill, “Judge Tosses Anti-Spam Suit Against Virtumundo”, DirectMag, May 15; Venkat Balasubramani, “Can-Spam put to the test”, News.com, May 22). According to Ken Magill of DirectMag:

Gordon opted in to receive the e-mails and failed to use the opt-out mechanisms supplied in the subsequent messages, according to court records.

Also, during the trial it came out that Gordon’s sole source of income is from commercial e-mail disputes and that he’s cutting his friends in on the gig….

Gordon has testified that in 2006 he received no income that was not the result of a settlement of a dispute. . …He also admitted that his “clients” — apparently people to whom he provides e-mail accounts — supply him with e-mails they deem are spam for him to use in his disputes and that they get an unspecified percentage of the settlements.

(“Man, Oh Man, What a Racket”, May 22).

Also last month, a different federal court (Central District of California) resolved another CAN-SPAM case in a manner favorable to the defendant, Vonage; the court ruled that the emails sent by Vonage were probably not illegal under California law and that in any case such law would be pre-empted by the federal spam statute. Representing the plaintiffs: Seattle class-action firm and frequent Overlawyered mentionee Hagens Berman. (“The Tide Continues: Court Shoots Down Spam Class Action”, SpamNotes, May 28). Earlier on CAN-SPAM and California anti-spam law here.

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Unsolicited-email plaintiff John Ferron
10.19.08 at 1:41 am

{ 3 comments }

1 Ima Fish 06.11.07 at 11:00 am

Leave it to an attorney to make spammers (aka, mass email marketers) look sympathetic!

2 Ted 06.11.07 at 12:38 pm

Note that this was not a suit against a spammer. For the most part, trial lawyers don’t sue spammers, because they’re judgment-proof. There’s no profit in going against the actual law violators, because they’re fly-by-night operations.

This was a lawsuit against a legitimate business using a tendentious reading of the anti-spam laws. As with most civil consumer protection laws, the laws utterly miss their target and hit the innocent instead.

3 markm 06.15.07 at 2:45 pm

Ted: “There’s no profit in going against the actual law violators, because they’re fly-by-night operations.” As I understand it, most spammers are getting paid to “advertise” a business that actually has an address and a phone number, otherwise they wouldn’t have a way to sell products to the nitwits that respond to the spam. The spammer probably cannot be found, but whoever profits fromt he spam can be. Isn’t paying someone to violate the law also a violation?

Now, in this case Gordon obviously failed to collect the evidence needed to show that they were violating the law, and may even have been engaging in entrapment. However, going after the merchandisers is the only way we’re going to limit the flood of spam.

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