The Ninth Circuit just put out some pretty strict limits on who can sue e-spammers.
Namely, who can’t: people like this “professional plaintiff” who tried to use the federal CAN-SPAM law to set up a “litigation mill.”
What makes a whole bunch of lawsuits a mill, exactly? The Ninth knows it when it sees it, and it goes something like what pro se appellant James Gordon Jr. did: He registered a domain and leased out server space to host it. Then he set up @gordonworks.com email accounts for some friends and family, and used those accounts when registering for a lot of online promotions and giveaways. Then he sued the online marketers who inevitably spammed them. He claimed the defendant in today’s appeal, for example, sent about 13,800 illegal e-mails to @gordonworks.com accounts. For that, he asked for injunctive relief, “several millions of dollars in statutory and treble damages,” and his attorney’s fees and costs.
So what’s wrong with being a courthouse entrepreneur? Why CAN-SPAM ain’t your father’s ADA, after the jump …
The Ninth Circuit –- in what Judge Richard Tallman calls the first opinion from any circuit to “comprehensively” look at private standing for CAN-SPAM –- basically told Gordon nice try, but legislators couldn’t have possibly have meant people like you when they said “Internet access service providers” have standing.
And oh, by the way, they also didn’t mean to let spam masochists sue over email lashings they go around begging for. Or to put in more legally terms …
“It is highly significant that the burdens Gordon complains of are almost exclusively self-imposed and purposefully undertaken. Here, Gordon acknowledges that he benefits from the receipt of spam through his research and monetary settlements. The fact that Gordon derives substantial financial benefit but endures no real ISP-type 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 violations of the federal act in any cognizable way.”
In Gordon’s defense, this is a kind of strategy that has worked before. As (concurring) Judge Ronald Gould acknowledges himself …
“We accord standing to individuals who sue defendants that fail to provide access to the disabled in public accommodation as required by the Americans with Disabilities Act (“ADA”), even if we suspect that such plaintiffs are hunting for violations just to file lawsuits.”
Ah, but wait!, he says … there is a difference.
“Congress provided standing to ‘any person’ subjected to disability discrimination in violation of the ADA, and it also did not expressly require a showing of injury or adverse effect from the discrimination. … We should not extend the concept of ‘tester’ standing to an area where we do not have confidence that Congress intended to empower anyone to make claims.”
PS In addition to affirming U.S. District Judge John Coughenour and throwing out the case, the Ninth Circuit also gave Coughenour props for the “pioneering analysis” he did “in this uncharted territory.”
— Pam Smith
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