December 23, 2011
Old School Spam Plaintiff Rebuffed in the Ninth Circuit
[Post by Venkat Balasubramani]
James Gordon has generated more than a few blog posts as a result of his quixotic quest to hold bulk emailers liable under CAN-SPAM, despite not fitting within the categories of persons or individuals who have standing under that statute to bring private causes of action. He was the plaintiff in the Virtumundo case, in which the Ninth Circuit rejected his claims and effectively put an end to the budding spam litigation cottage industry. ("An End to Spam Litigation Factories?--Gordon v. Virtumundo"; "CAN-SPAM Defendant Awarded $111k in Fees/Costs--Gordon v. Virtumundo.") Following Virtumundo, Gordon was the subject of some collections efforts, where he may have lost his home and belongings. (DirectMag: "Anti-Spammer Loses More than His Lawsuit.")
It turns out, despite his stunning string of failures in court, Gordon is still at it! But he doesn’t seem to be making much progress. The Ninth Circuit recently rejected his appeal in three pending cases. Proceeding pro se, Gordon appealed three district court grants of summary judgment against him. In all three cases, the court affirmed the district court judgments on the basis that Gordon lacked standing to sue under CAN-SPAM and his claims under Washington’s spam statute were preempted. He brought a few additional state law claims (consumer protection act, breach of contract) but the court doesn't give those more than a cursory sentence.
Virtumundo, along with Mummagraphics, the two leading appellate cases construing CAN-SPAM preemption, left a small window available to spam plaintiffs. There has been some attempts by plaintiffs to advance state law claims in California ("CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM"; "Plaintiff Wins $7,000 Following Bench Trial on Claims Under California Anti-Spam Statute"), but for the most part, plaintiffs suing under state anti-spam laws have been shut down elsewhere.
Posted by Venkat at December 23, 2011 04:42 AM | Spam