A pair of spam litigation veterans (William Silverstein and e360) clashed in a dispute in the Central District of California, where Judge Snyder denied e360's Motion for Summary Judgment and granted in part and denied in part Sliverstein's Anti-SLAPP Motion to Strike and to Dismiss e360's Claim for Abuse of Process.  (Access the court's order here.  Disclaimer:  I had a tough time following the court's recitation of the facts and procedural background.)

Background

Silverstein brought claims against e360, Moniker, and David Linhardt alleging CAN-SPAM violations.  Defendants 360 and Bargain Depot filed counterclaims for defamation and abuse of process.  Silverstein also brought a claim for defamation against e360. 

Silverstein brought a Motion to Strike Defendants' counterclaims, and Defendants moved for summary judgment on Silverstein's CAN-SPAM claims.  Apart from granting attorney's fees to Silverstein on a partial win on his Motion to Strike both sides walked away without conclusive victories.

Anti-SLAPP Issue (Silverstein's Motion)

e360's defamation claims were based on two statements, one referring to e360 as "liars" and "spammers," and the other referring to e360 as a "spammer," based on Silverstein's statement that he "received spam from e360, therefore e360 must be a spammer."

An anti-SLAPP motion requires a showing that the claims at issue arise from the speaker's acts "in furtherance of a person's right of petition or free speech . . . in connection with a public issue."  With respect to the first claim, the court held that Silverstein failed to present evidence that he made the statements at issue in preparation for the litigation and denied his request as to the first statement.  The second statement was made in a public forum (Usenet) and the court moved to the second issue of whether there was a viable claim.  Here, the court found that plaintiff failed to present adequate justification with respect to his statement that e360 was a spammer and on this basis denies Silverstein's request to strike this defamation claim (without prejudice to later renewal). 

Abuse of Process (Silverstein's Motion)

With respect to the second claim (for abuse of process) e360 rightly conceded that e360's claim lacked merit, and even offered to drop the claim.  Silverstein contended that e360 never actually requested the court to dismiss the claim and that he incurred attorney's fees in dealing with it anyway.  The court agrees with Silverstein on this but disagreed as to the amount of fees.  The court found that Silverstein sought to recover for fees which were not actually incurred in connection with dealing with this claim and that his attorney's billing records were inadequate to justify the sought after award.  The court ultimately ordered Silverstein to submit additional evidence on this point . . . and indicated that although Silverstein will likely be entitled to an award of fees, the amount may be less than Silverstein expects. 

CAN-SPAM Claims (e360's Motion)

The court disposed of e360's motion to dismiss the CAN-SPAM claims against it on largely procedural grounds.  Silverstein argued that e360 had not properly responded to his discovery requests and thus he lacked evidence sufficient to oppose the motion.  The court directed him to file a motion to compel in front of the magistrate.

Libel Per Se (e360's Motion)

Silverstein also brought a claim that e360's statement that Silverstein was a "criminal vigilante," implying that Silverstein improperly accessed e360's servers to transmit bad emails to e360's clients constituted, libel per se.   e360 argued that e360's statement was mere hyperbole and cited to among other cases, the famous Goetz v. Kunstler case (where Goetz's claim that Kunstler libelled him by calling him a "murderous vigilante" was dismissed).  The court disagreed, finding that it was not clear based on the context of the statement that e360's statute would be reasonably understood as mere hyperbole. 

e360 also argued that its statements that Silverstein improperly accessed e360's statements were privileged because the statements by e360 were made only in the context of a court filing.  The court agreed, since Silverstein could not point to any other place where e360 allegedly made these statements, and granted e360's motion as to this statement.  (Should e360 have brought an anti-SLAPP motion on this particular claim?)

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I'm not really sure how to react as to all this litigation, except that it sure seems from reading the court's order that the parties are aggressively litigating issues that are unlikely to result in any life-altering results.  e360's counterclaims are not terribly likely to succeed, and even if they do, unlikely to result in a significant damage award.  Similarly, the recent trend of cases makes Silverstein's claims seem lukewarm, at best.  The fact that the parties are fighting tooth and nail over seemingly tenuous defamation/libel claims is also telling.  The dispute is not really about spam any more, it's about something else entirely.  The statements made by the parties publicly pretty much confirms this.

When all is said and done you're left with the feeling that this litigation falls squarely in the heap of the rest of the lawsuits (Virtumundo, Mummagraphics, and others) that are really going to not make one bit of difference regarding the millions of pieces of spam that you and I receive on a regular basis.  And in this respect, the biggest loser of all seems to be the CAN-SPAM Act.

Oh well.....