January 13, 2010
Intellectual Property, Internet & E-Commerce Alerts

Spam Catcher Suit Fails

Online Spam researcher James Gordon used a hosted domain to create a number of generally unused email addresses, which were configured to provide an automated response to all commercial email sent to accounts at his posted domain.  The automatic response was titled "NOTICE OF OFFER TO RECEIVE UNSOLICITED COMMERCIAL EMAIL (SPAM)", and proposed to consummate a 'binding contract' by which the sender agrees to either cease and desist from spam or pay $500 for each additional unsolicited email subsequently delivered to the account.  As the email accounts accumulated Spam, Gordon began filing lawsuits in state and federal court against various commercial Spam senders and sponsors, asserting claims under state contract and consumer protection laws, and under the federal CANSPAM Act. 
 
The federal Ninth Circuit Court of Appeals has now affirmed grants of dismissal and summary judgment in favor of the commercial Spam defendants in this case, on the basis that plaintiff's creation of dormant email accounts under his posted domain, for Spam-catching purposes, is insufficient to give him standing to sue as an "Internet Service Provider" (ISP) under the federal CANSPAM Act.  The associated state claims were also dismissed on the basis that (1) to the extent the state laws concern deceptive or materially false email headers, they are preempted by the federal CANSPAM Act; and (2) that to the extent the claims concern other misconduct actionable under state law, they were not alleged or supported in sufficient detail (Gordon v. Virtumundo, Inc., 9th Cir. No. 07-35487, August 6, 2009).
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