whatever Roger Yoerges and Jeff McFadden are saying it doesn’t matter according to the state law.

according to me and what the article stated Roger Yoerges and Jeff McFadden are just blood sucking leeches who just want to earn easy money by suing companies

What Mr. Rothman utterly fails to note is that (1) this was a two-phase trial, and (2) the only phase that is indisputably supported by the law was the first phase that Connexus and Kraft lost. In phase one, the jury was asked to determine whether BSI is an “interactive computer service provider” and an “electronic mail service provider” as defined by the Maryland and California statutes, respectively. Under those statutes, providers of these kinds of services are permitted to sue for false and misleading spam. Connexus and Kraft, the spammer-defendants in this case, put on all kinds of evidence in phase one to try to undercut BSI’s claim that it satisfied the statutory requirements for standing. For example, the defendants proferred a so-called expert on ISPs, who testified that BSI was “inconsistent” with a true ISP because it didn’t have its servers in cages, didn’t have fire protection, and didn’t have other bells and whistles that large ISPs allegedly have. The jury rejected all of this evidence and expressly found — in phase one — that BSI clearly met the statutory definitions for standing. The case then moved to phase two during which, as Mr. Rothman wrote, the jury was allowed to consider whether BSI’s frequent litigation under the various state anti-spam statutes somehow affects its “bona fides,” a requirement that, unlike the federal statute, is found nowhere in the far more encompassing state statutes at issue. BSI’s position was that phase two of the trial never should have occurred, because there was no legal basis for it. The judge, however, was not prepared to rule on the “bona fide” requirement prior to trial and was interested to see how a jury would decide the issue. Accordingly, Connexus and Kraft fashioned a jury instruction that essentially compelled the outcome. Under it, if the jury concluded that, between 2005 and 2011, BSI was “substantially” or “primarily” involved in anti-spam litigation, then it couldn’t be found to be a bona fide plaintiff. BSI never hid from the fact that, when these state anti-spam statutes went into effect around the country, it (BSI) used them to try to stop the spam that was clogging its servers, and it spent a great deal of time and money doing so. Thus, the jury instruction essentially was drafted such that an ISP that uses the statutes for the very purpose that they were enacted would do so at its own peril, because its very use of the statutes would undercut it bona fides as an ISP. That may have been the right outcome in Gordon (under the CAN-SPAM Act), given that the plaintiff there appears to have created an ISP solely for the purpose of litigating, but BSI — a small ISP to be sure — was operating as an ISP six years before the Maryland and California statutes were even enacted.

With the outcome pre-ordained by a defendant-friendly jury instruction (one that doesn’t even track Gordon, which never mentions the actual requirements to be a “bona fide” ISP), the odds were tilted heavily (if not exclusively) in the spammers’ favor — and unfairly so in BSI’s view.

The judge now has to decide, as we had urged him to do prior to the trial, whether there is any bona fide requirement at all under the laws that govern this case. If he rules that there is no such requirement, then the jury’s verdict in phase one will control, and we’re on to a full trial on the merits on whether and to what extent the spam from Connexus and Kraft violated the anti-spam statutes.

That’s the whole story.

Roger Yoerges and Jeff McFadden
Steptoe & Johnson, LLP

In Gordon, “Virtumondo does not contest Gordon’s standing to bring CEMA claims.” Gordon v. Virtumondo, 575 F.3d 1040, 1058 (9th Cir. 2009). “CEMA” is the Washington state email statute. Our case involved the MD CEMA, which is the Maryland anti-spam statute based on Washington’s CEMA. Our case also involved California Business & Professions Code 17529.

What our case does — assuming the judge adopts the jury verdict and our theory of the case — is require bona fide ISP standing to maintain claims under state law (California Business & Professions Code 17529 and Maryland state law). This is new territory especially since a jury made the findings.

We no doubt expressly relied on Gordon in many Court papers, are not shy about that (the documents are public and my name is all over them), and take zero credit for Gordon. What we did was take the logic of Gordon and apply it to state law so that the door is shut on state law suits brought by ISPs that are not bona fide — something that Gordon did not decide.

to the Rothman author seeing as how this was already argued /as stated in above post/ can you explain how this “first impression” case or how the impact is any different?

if not very uncool trying to take credit

peace

Wasn’t the ISP defense used YEARS ago in a few other cases like Gordon and Asls? This is pretty common knowledge and followed very close by those in the online community.

This was also picked apart and laid out pretty cleraly by courts in New York not long ago.

feels more like a commercial than a real article. Pace usually has higher standards than this when it comes to legal stuff

yawn