Ninth Circuit Rebuffs Another CAN-SPAM Plaintiff — Asis Internet Services v., Inc.

[Post by Venkat]

The Ninth Circuit recently rejected [pdf] two appeals brought by CAN-SPAM plaintiff Asis Internet Services. The trial court granted summary judgment in favor of Azoogle and awarded costs. See Eric’s earlier blog post on that ruling. Asis has brought numerous lawsuits against different defendants. While this ruling won’t necessarily be used preclusively against Asis it will definitely be cited by the defendants in those cases.

Citing Gordon v. Virtumundo, the court finds that:

the mere costs of carrying SPAM emails over Plaintiff’s facilities does not constitute a harm as required by the statute. While Plaintiff argues that employee time was spent on spam-related issues, Plaintiff concedes that it has no records detailing employee time. Plaintiff also spent money on email filtering, though the cost of email filtering did not increase due to the emails at issue. Such ordinary filtering costs do not constitute a harm. [cite omitted] Thus, Plaintiff has not suffered a harm within the meaning of the statute and lacks standing.

The entire memo opinion is about two pages, and the court spends a sentence noting that Asis is not entitled to relief under the California statute (17529.5) because Azoogle “neither sent nor procured the emails at issue, and therefore did not ‘advertise’ within the meaning of the statute.”

The big take away is that courts seem to be able to sniff out people who they view as pursuing litigation for the wrong reasons. It’s unlikely that Asis was truly damaged to the extent of even a fraction of fees and resources it spent on this case.

Plaintiffs who aren’t large ISPs or social networking websites haven’t found a very sympathetic audience, particularly at the appellate level. We’re probably left with a regime where only larger ISPs, social networking websites, and state actors are able to effectively bring anti-spam lawsuits. The scope of preemption of California’s anti-spam statute is still unclear (Kleffman v. Vonage was certified to the California Supreme Court) so this is one possible option for plaintiffs, but I can’t imagine they’ll be spending much energy on this.