The Ninth Circuit Court of Appeals has thrown out a suit by a plaintiff who assumed the role of a "spam sleuth" in order to capture massive volumes of e-mail marketing messages to fuel his "litigation enterprise" and then share the settlement proceeds with his "clients."
The spam scam went like this, according to Recorder newspaper reporter Pam Smith:
The plaintiff, James S. Gordon, Jr. created a personal e-mail address through GoDaddy, a domain registrar and web hosting company. He then set up additional e-mail accounts for a half dozen friends and family members, and subscribed himself and his "clients" to e-mailing lists for various online promotions and prize giveaways between 100 and 150 times.
Soon after, these accounts began receiving e-mails from businesses marketing their goods and services, according to the opinion in Gordon v. Virtumundo, Inc. In 2004, Gordon began filing lawsuits in state and federal court against the companies or individuals who sent the solicitations to the e-mail accounts. In this particular case, he sought injunctive relief, several million dollars in statutory and treble damages, and his attorney fees and costs.
The court ruled that Gordon did not have standing to bring a private action under the federal CAN-SPAM Act, noting: "Gordon has purposefully avoided taking even minimal efforts to avoid or block spam messages. Instead, Gordon devotes his resources to adding his 'clients' e-mail addresses to mailing lists and accumulating spam through a variety of means for the purpose of facilitating litigation."
"The CAN-SPAM Act was enacted to protect individuals and legitimate businesses -- not to support a litigation mill for entrepreneurs like Gordon," the court continued.
However, the court noted that it has granted standing to plaintiffs with similar schemes before. In a concurring opinion, Judge Ronald Gould wrote, "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."