Last week we saw the Western District of Washington grant summary judgment against and dismiss a CAN-SPAM claim on quasi-standing grounds.  Anecdotally, the case reporters of the Eastern and Western districts of Washington are no stranger to the plaintiff in that case.  In one of the earlier preemption decisions [link], the Eastern District (in 2005) found Gordon’s claims under Washington law to not be preempted by CAN-SPAM (the Western District of Washington came to a different conclusion).  It turns out, the day before the court issued its order granting summary judgment against Gordon, a court in the Eastern District denied an omnibus Motion to Dismiss in a separate case.  You can read that order here, and it gives a great flavor of the types of issues typically raised in these lawsuits. 

A few more follow up points to Virtumundo.  First, no word on whether Gordon plans to appeal the decision.  Factually speaking it may not be best suited to push the issue, but you never know what the Ninth Circuit could sieze on.  The obvious qualm with the decision is that it read into CAN-SPAM a quantitative and qualitative injury requirement where none explicitly exists.  CAN-SPAM sets forth who can sue and includes providers of an “Internet Access Service” among this group.  That definition is unfortunately loose – but that is what it is.  It’s not the job of courts to redraft sloppy statutes.  A (rather prescient) spam notes post provides some background on this here.  The court’s conclusion in this case is also roughly at odds with a previous N.D. Cal decision rejecting a mitigation argument (and concluding that CAN-SPAM damages are “penalties”) [Phillips v. Netblue, Inc., et al., 2006 U.S. Dist. LEXIS 92573 (N.D. Cal. 2006)] [link].  All in all the ideal case (albeit, with bad facts) to draw forth a thorough explication of what the Ninth Circuit thinks.  (And lately, you never know which way the Ninth Circuit goes on this sort of stuff.)

Now, I would bet whether Gordon appeals will depend on the outcome of the attorney’s fees issue (and in any event would have to wait until the final oder is entered in the case).  And that’s where Gordon should push the envelope.  It’s not clear in CAN-SPAM cases as to whether courts should first make a finding that the claims were "frivolous, unreasonable, or groundless" before awarding fees.  Courts have articulated a reluctance to taxing CAN-SPAM plaintiffs because the law is “developing” and to freely award fees would stunt the growth of the law in this area [link].  (It's apparent from the court Order in this case that the legal issues were far from black and white.)   The court seemed ready and willing to award fees and did not engage in any detailed findings or reasoning on the issues of frivolity or reasonableness.  Although the court may revisit the issue, if it sticks to its original decision, this may well be a viable issue on appeal. 

Also interesting is the effect of the Virtumundo ruling on Matthew Prince’s project [link] in the Eastern District of Virginia.   A quick look at the Complaint in that case reveals the following lone allegation about “adverse effect” (affect?):

Every spam message transmitted to a Project Honey Pot honey pot email address harms Project Honey Pot.  Each spam message is received by a mail server controlled by and paid for by Project Honey Pot which then must process, store and analyze the message to help protect the website owners who have installed honey pots on their webpages from harvesters, and to protect the domain name owners who have donated MX records from spam attacks.

Not terribly sold, and sounds oddly similar to Gordon's core damage arguments.  (Also interesting is whether spam-filtering companies can maintain CAN-SPAM claims.  In the case of someone like Spam Arrest I think the answer is probably yes.)  In any event it will be interesting to see how that case progresses, and to see if any of the defendants dig in to the financial and other details behind the so-called “Project Honey Pot”.