US v. Impulse Media - No CAN-SPAM Injunction
I previously mentioned the enforcement action brought against Impulse Media. For some reason, the government decided to ask the court for injunctive relief after losing the case in front of a jury. The rules procedurally allow for this, but given the basis of their loss the govt. had to ask the judge essentially to disregard the jury's findings and come to a different conclusion based on the evidence. (The government presented some additional evidence but this was not sufficient to change the court's mind.) This doesn't typically happen, even less so when the government is the plaintiff. (Note, in some circumstances the govt. is required to make a lesser showing to obtain injunctive relief but none of those provisions seem applicable here.)
The court (as expected) relied on the jury's findings in rejecting the government's request for injunctive relief. (Access a copy of the 3 page order here [h/t Prof. Goldman).) It's fair to say it did not seem like a tough call in the eyes of the court.
So what was the government thinking exactly here? I would have been worried about wasting taxpayer dollars or worse yet, running up an adverse attorney's fees award. Not to mention the fact that everything in this case is going to make it that much harder for the government to bring similar enforcement actions in the future. Did the government just become a rabid anti-spam plaintiff, unable to step back and see the bigger picture? Maybe they had some sort of mandate to litigate as aggressively as possible to send a message to affiliate marketers?
(NB: I'm not sure what IMG's basis (if any) would be for seeking fees under CAN-SPAM. The CAN-SPAM fees provisions are applicable in the case of an action brought by an ISP (see, e.g., Virtumundo), but the FTC enforcement actions do not provide for an award of fees, at least not via CAN-SPAM. Separately, states who prevail in their enforcement actions are entitled to fees under CAN-SPAM. Notwithstanding the mishmash of fees provisions, it doesn't seem like CAN-SPAM expressly provides for a fee award in favor of a defendant who prevails in a federal enforcement action.)