Professor Goldman points to an order from the Western District of Washington (Judge Bryan) which surely counsels in favor of increased scrutiny of CAN-SPAM lawsuits.  At the very least, this case demonstrates how CAN-SPAM plaintiffs end up costing defendants an excessive amount of fees.  In most cases, even if defendants recover fees, it's unlikely that they will collect a significant portion of those fees.

Mark Ferguson sued Quinstreet, Inc. alleging a variety of claims under CAN-SPAM and Washington's email statute.  On August 5, 2008, Judge Bryan granted a defense motion for summary judgment on standing and preemption grounds.  (Previous post here.)  Ferguson appealed the judgment - the appeal is currently pending - and in the meantime, starting posting messages on message boards stating that "Quinstreet, through its counsel . . . committed perjury, which is a felony, by lying to the Court during proceedings in th[e recently dismissed matter]."  Quinstreet brought a new lawsuit alleging defamation and interference with contract [why/how in federal court? diversity as a basis looks pretty flimsy].  Ferguson counterclaimed, alleging a variety of spam claims.  He did not dispute that the "counterclaims [were] identical to the claims he made in the prior litigation." 

The parties each brought several motions.  Surprisingly, Judge Bryan refused to grant (in full) Quinstreet's motion to dismiss on preclusion grounds.  While he agreed that the claims were precluded to the extent they were based "based upon events occurring before the [date of the prior order]," Judge Bryan gave Ferguson until February 9, 2009 to clean up the allegations underlying his counterclaims.  The order probably left Quinstreet's lawyers scratching their heads.  For starters, the previous dismissal was on standing grounds.  It's difficult to see how plaintiff's standing could have changed.  Plaintiff would be precluded from alleging or proving different facts anyway.  Additionally, the counterclaims are a transparent attempt to kick up dust and increase Quinstreet's expenses.  (Granted, it doesn't cost Ferguson much since he's proceeding without counsel.)  I'm surprised Judge Bryan didn't dismiss the counterclaims on the court's own motion, or at the very least order Ferguson to show cause as to why the counterclaims shouldn't be dismissed.  Maybe impose a bond requirement.  Something.  Anything? 

The court is depressingly lenient to the defendant (anti-spam plaintiff) in this case.  Access a copy of Judge Bryan's order here [pdf] (Quinstreet, Inc. v. Ferguson, W.D. Wash. Case No. C08-5525RJB, Jan. 23, 2009).