Email Bombardment is Not Actionable?
Say it ain't so!
A federal court in Florida (M.D. Fla.) rejected CAN-SPAM claims brought by a home inspector who alleged his "own personal email" account was "bombarded" with emails from the National Association of Certified Home Inspectors. (Stagl v. Fromicko, et al., M.D. Fla case no. 3:07-cv-967-J-32TEM.) According to the order issued last week (rejecting the CAN-SPAM claims) plaintiff was a member of NACHI. He ended his association with NACHI and requested removal of his email address from NACHI's email list. Plaintiff allegedly continued to receive emails.
The court easily finds that plaintiff lacks standing as the provider of an internet access service to bring claims under CAN-SPAM. Plaintiff admittedly received emails to his own personal account and didn't provide any evidence supporting his claim that he provided any internet access services to third parties or that plaintiff suffered any "adverse effects". An easy dismissal based on Virtumundo. Plaintiff also brought claims under Florida's email statute but failed to specify that he was one of the entities which could maintain a cause of action under the statute. End result? "case dismissed with prejudice . . . clerk instructed to close the file."
This is not an earthshattering decision by any means (a fairly run of the mill dismissal based on Virtumundo). The fact that the parties both proceeded pro se is sort of interesting (lawyers were involved, but withdrew at some point). Are lawyers getting less excited about CAN-SPAM claims? (NB: as a counterpoint to this, I noticed that Hypertouch (early spam litigation pioneer) is represented by Steptoe & Johnson in its suit against Azoogle: Hypertouch, Inc. v. Azoogle.com, Inc., 2009 U.S. Dist. LEXIS 25999 (N.D. Cal. Mar. 19, 2009).)
A federal court in Florida (M.D. Fla.) rejected CAN-SPAM claims brought by a home inspector who alleged his "own personal email" account was "bombarded" with emails from the National Association of Certified Home Inspectors. (Stagl v. Fromicko, et al., M.D. Fla case no. 3:07-cv-967-J-32TEM.) According to the order issued last week (rejecting the CAN-SPAM claims) plaintiff was a member of NACHI. He ended his association with NACHI and requested removal of his email address from NACHI's email list. Plaintiff allegedly continued to receive emails.
The court easily finds that plaintiff lacks standing as the provider of an internet access service to bring claims under CAN-SPAM. Plaintiff admittedly received emails to his own personal account and didn't provide any evidence supporting his claim that he provided any internet access services to third parties or that plaintiff suffered any "adverse effects". An easy dismissal based on Virtumundo. Plaintiff also brought claims under Florida's email statute but failed to specify that he was one of the entities which could maintain a cause of action under the statute. End result? "case dismissed with prejudice . . . clerk instructed to close the file."
This is not an earthshattering decision by any means (a fairly run of the mill dismissal based on Virtumundo). The fact that the parties both proceeded pro se is sort of interesting (lawyers were involved, but withdrew at some point). Are lawyers getting less excited about CAN-SPAM claims? (NB: as a counterpoint to this, I noticed that Hypertouch (early spam litigation pioneer) is represented by Steptoe & Johnson in its suit against Azoogle: Hypertouch, Inc. v. Azoogle.com, Inc., 2009 U.S. Dist. LEXIS 25999 (N.D. Cal. Mar. 19, 2009).)
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