9th Circuit Cans Serial Plaintiff’s Spam Suit

(CN) - The 9th Circuit has put the lid on "professional plaintiffs" who sue spammers for profit. In affirming dismissal of one of an entrepreneur's numerous lawsuits against spammers, the Seattle-based circuit called him a "litigation mill" and said that "the burdens (he) complains of are almost exclusively self-imposed and purposefully undertaken."

In 2006, James Gordon and his company, Omni Innovations, sued spammers Virtumundo Inc., Adknowledge Inc. and Scott Lynn, the companies' sole shareholder, after receiving thousands of commercial e-mails. The defendants ultimately won summary judgment.

Gordon set up several e-mail addresses and subscribed to mailing lists up to 150 times, then reportedly received 13,800 spam e-mails.

He configured his e-mail server to send an automated response to all spammers titled, "Notice of Offer to Receive Unsolicited Commercial Email," that offered a purported "binding contract" by which the sender either agreed to stop or pay Gordon $500 for each unsolicited e-mail.

Gordon then began filing lawsuits in state and federal court in 2004 for violations of the CAN-SPAM Act.

"The fact that Gordon derives substantial financial benefit but endures no real ... harm from commercial e-mail, coupled with his unusual efforts to seek out and accumulate - rather than avoid or block - spam, demonstrates that he has not been adversely affected by alleged violation of the federal act in any cognizable way."

The court added that it was "sympathetic to the legitimate operations hampered by a deluge of unwanted e-mail marketing," but wrote: "Gordon has created a cottage industry where he and his clients set themselves up to profit from litigation.

"The CAN-SPAM Act was enacted to protect individuals and legitimate businesses - not to support a litigation mill for entrepreneurs like Gordon."

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