Furthermore, these adverse effects must be significant. The effects need to be more than the time and money spent dealing with spam. The effects must rise to a significant level of harm unique to an IAS. . . . These harms include a substantial decreased bandwidth, expenditures of resources to manage the spam (hired staff, purchased equipment, increased server costs) and compromised network integrity. Plaintiff has not pleaded these, or indeed any, adverse effects resulting from Defendant's alleged spam and therefore has not satisfied the statutory standing requirement under the Act. Under either of the previous cases, Hypertouch or Gordon, his pleading is insufficient to establish standing.

The notable thing about this is that the court raised the issue on its own.  In fact, Defendants are representing themselves (proceeding pro se).  A dismissal by the court on its own motion is definitely a sign that it's time to rethink the whole enterprise.  If plaintiff ultimately does not prevail, this will surely influence the court's thinking on whether defendants are entitled to fees. 

To me, Gordon, and cases following it, are a great illustration of how much of an utter failure CAN-SPAM has been.  The government (and maybe some sophisticated players) are well suited to enforce this law.  Private citizens simply lack the ability to conduct a real cost benefit calculus and just seem to get too emotional over the whole thing.  (h/t Prof. Goldman)