Asis Internet Soldiers On
Asis Internet's recent loss against Azoogle did little to dissuade it from pursuing its ongoing spam litigation. By my count (not counting Azoogle) Asis has five active cases in the Northern District of California (all being handled if I recall correctly by the same counsel - the Singleton Law Group) (Member Source's Motion references a higher number):
- Asis Internet Services v. Member Source Media LLC (3:2008cv01321 filed on 03/07/2008)
- Asis Internet Services v. Pure Ads, LLC (3:2008cv01566 filed on 03/21/2008)
- Asis Internet Services v. Imarketing Consultants Inc (4:2007cv05357 filed on 10/19/2007)
- Asis Internet Services v. All In, LLC. (3:2007cv05717 filed on 11/09/2007)
- Asis Internet Services et al v. Active Response Group, Inc. (3:2007cv06211 filed on 12/07/2007)
1. Active Response Group / Discovery Issues: The parties in Asis Internet v. Active Response Group, Inc. (ARG) squabbled over the terms of a protective order which would govern disclosure of various Asis and Asis-client email addresses. Asis actually sought an "attorneys-eyes only" provision with respect to addresses which it needed to disclose to ARG so ARG could determine which of its affiliates sent the emails in question. Ultimately, the court granted a limited protective order, and more importantly appointed a ($450/hour) special master to deal with these types of discovery disputes in the future. (Access Judge Henderson's order here [pdf].) I don't really know what to say about this, except that it doesn't seem like a terribly wise expenditure of money for anyone. It's also worth noting that Asis made some arguments regarding the necessity of the protective order (COPPA (??)) which had little traction with the judge.
2. Imarketing Consultants / Motion to Dismiss or Transfer: Imarketing moved to dismiss for failure to state a claim and for lack of jurisdiction and sought a transfer. The court mostly denied the motion (or denied the most important part of the motion) but ultimately found the pleadings deficient and granted leave to amend. The refusal to dismiss on jurisdictional grounds is not terribly surprising - this rarely happens (I can see why the motion was brought in this instance). The sufficiency of the complaint is worth a look. (Access the order here [pdf].)
Although the court ultimately found that Asis failed to plead that it suffered "adverse effects" from the emails in question and granted leave to amend, Imarketing raised a few other colorable arguments that the court didn't delve into (and it perhaps should have). First, Imarketing argued (citing a previous case involving Asis) that claims surrounding falsity in header information must be pled with particularity and Asis failed to do so. The court found that the particularity requirement only applies to "the content" of the emails (presumably, the subject line?). I'm not sure that this distinction has much support in the law, and the court does not cite any cases in support, but this is what it is.
Next, Asis raised an argument that to me feels totally in left field. It argued that because the messages were sent via a domain which was registered using Domains By Proxy's privacy registration services, this in effect constituted a concealment of the registration information. I'm surprised (and I would be dismayed if I were Imarketing) that the court didn't just smack this argument down right away. It's a silly one. Asis also trotted out the familiar (but equally flimsy) terms of service argument: Imarketing registered the domain name after having represented that it would not spam . . . it didn't abide by that representation. . . . therefore it acquired the domain name by making a false representation. Again, it's too bad the judge wasn't quick to just swat this argument down right away.
3. Member Source / Bond Motion: Member Source (represented by the same lawyers who successfully represented Azoogle) filed a motion for security - a bond in the event it prevails and is awarded fees. To my knowledge, no one has successfully obtained a ruling on the bond issue (previous post here). Optin Global unsuccessfully tried. Perhaps the court will take a closer look, given Judge Spero's conclusion in Azoogle? Member Source's motion contains a slew of helpful allegations/averments in its favor, including statements made by N.D. Cal. judges to counsel for Asis (in motion hearings), and statements made by counsel for Asis regarding its inability to pay for fees and costs. A decision in favor of Member Source (which seeks bond sufficient to cover an anticipated $200,000 in fees) could effectively put an end to this litigation. (NB: the Azoogle ruling is currently being appealed by Asis and I think it has a reasonable shot of prevailing, or at least getting a remand.) (Access a copy of Member Source's motion here [pdf].)
I'd be curious to see Asis's financials. It would be telling from a policy standpoint if the money spent in litigation far eclipsed Asis's revenues over the past 3-4 years.