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Comment RSSIs Dan Balsam Hero or Villain?
Written by Pace LattinAugust 31, 2012 # 7:26 am # Legal Challenges, Specials # 14 Comments
Many people believe Daniel Balsam is a hero. With the never ending amount of spam out there, with spammers getting more and more creative, he represents a new breed of techno-geek armed with legal briefs. He’s an unassuming guy, graying hair and you’d never know from looking at him that he was a “hero” to many. Still, he’s found himself labeled a crusader as he’s been involved with taking on bulk-email marketers from Scott Richter to the mega-adult empire AdultFriender (aka Penthouse aka Various Inc.) Most people outside the industry see this as a good thing, but then again with much of the industry somewhat dependent on spamming, many see him as a villain who is just gaming the system for his own benefit, no better than the spammers.
Balsam definitely sees himself in some sort of caped-role and several in interviews positions himself as fighting the good fight against spammers, going as far to say he isn’t “going anywhere.” (Imagine with Arnold voice) Bennet Kelley, on the other hand, a high power attorney and award winning journalist has positioned himself against Balsam, claiming that his lawsuits are only a money-making technique and an abuse of the California small claims laws. He told me that “the Small Claims Act contains legislative findings that the small claims divisions were established “[i]n order to resolve minor civil disputes expeditiously, inexpensively, and fairly.” In a brief, he compares Balsam to other similar plaintiffs in where there was “abuse of process where defendants had a “pattern and practice” of knowingly filing actions in distant counties in order to gain an unconscionable advantage in the small claims case.” Bennet similarly claims that “Balsam has instituted multiple small claims actions against out-of-state defendants… who then must face the Hobson’s choice of investing substantial resources (which may exceed the amount demanded) in order to defend an out-of-state claim small claims action without the benefit of counsel (against Balsam who is a recently admitted attorney) or agreeing to Balsam’s settlement demands to avoid such an ambush.”
Balsam isn’t taking this sitting down and has taken on Kelley. He told us that “Bennet Kelley likes making big broad statements with nothing to back it up. Kelley has YET to provide a single example of how I’m taking advantage of the small claims courts. Or how I’m taking advantage of the anti-spam laws.” Some people have claimed that Balsam has over 100 email addresses specially to fool people into sending him SPAM. Kelley told us “Nobody knows (the reason that he has all these email addresses) but some do speculate over this since he has over 100 email addresses”
Balsam responded to this accusations specifically, denying them entirely and saying Kelley is making them up. “Frankly, my win record suggests that I’m doing everything properly”, says Balsam, “The reason I have lots of email addresses is specifically to REDUCE spam. I have a custom email address for just about everything I do online… e.g., southwestairlines@, dominospizza@, etc…Kelley claims I opt-in to try to receive spam. He’s lying.” I’m sure that who is lying will be someday addressed in court.
Balsam sees that perhaps one of the problems is the selling of email addresses. Nicely enough in answering our questions, he was very upfront and even provided advise to the industry as a whole “That’s (the list sales) one of the many problems. If you’re buying/selling lists, by definition the recipient isn’t giving “direct consent,” which is required under California law. This was an issue in the Trancos case; you can read the judge’s order on my website. How to address it: Reputable advertisers should be very careful buying lists, and make sure there are indemnification/breach of contract provisions so that if someone sues the advertiser, the advertisers can turn around and stick it to the list broker.”
When asked what one of the worse problems in the industry was, he told us “Right now, I’d say the worst are the fake (adult) dating websites. Not only do the spams have misleading subject lines, sent from fake names & email addresses, etc., but the entire business models are fraudulent because the databases are full of profiles of FAKE women (and paid employees of the spammer) who string along lonely men at $30 to month. Deniro Marketing LLC dba AmateurMatch.com is one of the worst in this area. I’ve beaten them in 7 small claims trials (4 lawsuits + 3 appeals) — never enough at a time to go into superior court.”
So what exactly is Mr. Balsam? On a personal level, I can understand where Mr. Balsam is coming from, the spammers in the industry are often doing a great deal of harm to our industry by the constant selling of data, the renaming of lists and using different PO Boxes. I can go on about the continued practices in the industry from “major” companies that not only violate CAN-SPAM but are borderline fraudulent. Despite the claims of many of the bulk-email marketers that people are signing up to receive spam, a vast majority of consumers do not want their email addresses sold 100 times and receive millions of emails. The proof is not just in their complaints, but in the very fact that bulk email produces very low response rates and is only profitable because it has little cost involved with it.
Is Balsam an opportunist? Of course, but so is a great deal of the industry, most especially the spammer operations who try to use ever loophole to hide their identity, to buy data unethically and to basically annoy the crap out of people through questionable marketing techniques. Are his lawsuits an abuse of the system? It’s my personal opinion that it is and Balsam depends on the very fact that it is often cheaper to settle than to litigate, which is definitely one of the growing problems with the legal system in this country. Even though part of me wants to go “rah-rah” when he files a lawsuit against some of the biggest scumbags in the industry, I can’t help but also believe that lawsuits like Balsam’s pose an equally just a big of a problem. It’s not that he is just suing scumbags, but has also sued seemingly innocent entities such as the Stockton Asparagus Festival which despite promoting bad-smelling urine—can’t really be considered one of the more “evil” projects in the world. Perhaps we need to create a new term and call him nothing more than a “lawsuit spammer.”
Still, quoting Gawker on the subject: “You want to know how great America is? This is how great America is: Not only can you make a living off of peoples’ penis-size insecurities, you can also make a living—a good living!—by suing those same people. “
Written by Pace Lattin
Pace Lattin is one of the top experts in interactive advertising, affiliate marketing. Pace Lattin is known for his dedication to ethics in marketing, and focus on compliance and fraud in the industry, and has written numerous articles for publications from MediaPost, ClickZ, ADOTAS and his own blogs.
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This duechbag is just another example of opportunistic scum!
Bennett Kelly is absolutely right. This is not what small claims courts were intended to be used for. Balsam accuses damages and demands payment in an amount greater than the small claims jurisdictional threshold. He’ll then file the complaint for a lesser amount than requested with the intent of creating an unfair advantage for himself and his client against out of state defendants who must appear in person (and are specifically precluded from retaining local counsel). This is, by definition, an “Abuse of process.” In most states, Abuse of Process is a cause of action. A potential plaintiff doesn’t even have to always win the underlying case. If you think you’ve been the victim of a possible abuse of process and have suffered damages from a Balsam suit, the facts of your case may create personal/subject matter jurisdiction over Balsam and/or his client in Your home state, sufficient to file a lawsuit against him or his client personally. The one caveat are that these are difficult cases to win in most states. The upshot is- it sure would be funny to see this guy scrambling around from state to get a taste of his own medicine.
*None of the above should be relied upon or construed as legal advice.
Bennett Kelly is the lapdog of these illegal spammers. It sounds as if you have done a lot of research on this subject, were you a defendent perhaps?
“on the other hand, a high power attorney and award winning journalist has positioned himself against Balsam, claiming that his lawsuits are only a money-making technique and an abuse of the California small claims laws”
High powered attorney and award winning? Sounds like the writer of this article is a victim of Kelley’s own marketing machine (himself) Kelley just loves to toot his own horn and write for freebie rags like Huffington Blog, Santa Monica Free Press and lets not forget his FREE radio blog.
“Bennie” has even hired himself an agent in the hopes he can become another “celeb Attorney” – unfortunately he just doesn’t have the handsome looks. The only one that wants to hear or see “Bennie” is Bennie himself or perhaps his little white therapy dog, that loves him despite all of his flaws.
One of Bennie’s low down tricks is to go after organizations or people he feels are responsible for online “crimes” (he loves to label people) then when they are unable to be located or don’t respond to his horrid written complaints. Bennie moves to file a default judgment against unsuspecting victims/defendants that are forced to defend themselves against Bennie’s cheap little tactics.
I direct this author or law students to do a search on Bennie’s poorly written Complaints and note his magical words like “on information and belief” and other legal jargon that simply is saying “I am guessing and don’t have a clue” and about money……Bennie loves to latch on to big paying clients until he exhausts all of their money and options then he goes for his name calling and other stupid tricks.
I direct you all to pull up Global Wide Media, Inc., vs. Richard Braun, UOPEN, Inc et al.
More of this tricks is failed ex parte applications that are getting to be a laughing stock of every reasonable judge. Maybe Value Click got tired of being a sucker client and moved on to more effective means.
Bennet Kelley – a legend in his own mind.
Come on “Bennie” I can smell your commentary a mile away it is all so cheap and disgusting.
How is it going with Value Click?
Oh that is right, they no longer use your “services”
Kelley and others may criticize what I do in small claims court, although no court has ever found that I’ve “abused the process” in any way. In fact, “Law Stud,” there’s California case law that small claims cases are based exclusively on the dollar amount plaintiff is seeking, not the complexity of the case. Let’s not also forget that those out-of-state spammers come to California to do business, so it’s only fair that they be called to task in California for their unlawful spamming.
Regardless, the fact is I spend far less time in small claims court lately, and far more time focusing on superior and federal court actions for my clients.
From what I understand it is Bennie that abuses small claims court by trying to debate, defend his clients. On more than one occasion has been told by Small Claims Court judges to back off and follow rules of procedure which apparently Bennie has a problem with. Even crossing the line and trying to approach the bench without permission.
Bennie has annoyed many judges with his frivilous motions and using himself as a “witness” for his paying clients. No bias there at all – right?
Bennie will go down as legendary alright, but probably not in the way he would like. If Obama loses this year, he will cry his eyes out. He only sees it his way and the ways of the liberal Democrats but then becomes an abuser of human rights trying to squash free speech when it suits his own needs.
Bennie and the jets, go home- Rhode Island is calling you.
Bennet Kelley is an able advocate and a man of high moral character. I am proud to have worked with him and am even more proud to call him a dear friend.
To attack a man’s character behind some nonsense psuedonym is a gutless and classless way to behave. My experience has been that when a person of integrity has something to say or a criticism to make that he signs his name to it.
Also, I heard through the grapevine that Balsam just lost a big case. That might be something you want to look into Pace. I’m sure folks would love to get the latest update.
Dear Brian;
No, in fact Dan Balsam just had the Supreme Court rule in his favor that Trancos case could not be appealed and it stands on it’s ruling that SPAM is illegal and annoying (kind of like your pal Bennie)
Sure Sure “Brian” you are a freind of Bennies’ wait till you don’t agree with him or Bennie has a hissie fit over losing yet another case…he will start with his cutsy little name calling.
For Dan he has labeled him “Spamulance Chaser” and for others he files fake police reports and tries to have them prosecuted but fails.
Bennies motions and paper work is sloppy and littered with conjucture upon conjucture.
Here is the victory announcement- eat your poor little heart out Bennie. You have no moral character when you decide to represent a child trafficker and con her out of $150K in legal fees only to deliver NOTHING but labels and name calling of the defendant.
Bennie is a sleazeball
Since you have written in the past on issues regarding spamming, I wanted to make you aware of some great news. The United States Supreme Court declined to hear a challenge to a California appellate court ruling in Balsam v. Trancos Inc., which ruled that email marketing company Trancos Inc. violated the state’s anti-spamming law. This ends the company’s attempt to argue the statute was preempted by federal law and further empowers people to protect their inboxes from those who deliberately falsify email headers with intent to mislead or hide from complaints against them. The Balsam v. Trancos case is the most recent of several published opinions I have achieved on behalf of email recipients seeking to have spammers comply with current law. *The United States Supreme Court designation for denial of the petition of certiorari is Trancos Inc. v. Daniel L. Balsam, case number 12-237 (October 29, 2012). The original appellate court decision is Balsam v. Trancos Inc. (2012) 203 Cal. App. 4th 1083. http://scholar.google.com/scholar_case?case=4942428848946702426&q=balsam+v.+trancos&hl=en&as_sdt=2,5 –
Here is the info on the most recent loss for Mr. Balsam.
Here is the courts ruling: http://docs.justia.com/cases/federal/district-courts/california/candce/4:2011cv02970/253887/149/0.pdf?ts=1347613892
Here is a transcript of the hearing: http://ilccyberreport.files.wordpress.com/2012/09/riey-transcript.pdf
I just came across this article and ensuing comments. It is interesting to note after the fact that Cathy Riley, who commented above, is Dan Balsam’s wife and “client”.
I’d think that it would have been proper to have disclosed that in this thread.
Hey Bennet at least he has a “wife”
he he as in female anyway. Although if you have any aspirations for poltics you might want to get married for a nice image or at least have one of your female bull dyke friends around.
On second thought you could never win an election, you are an arm chair politician that hopes to get appointed to the Santa Monica City Planning commission. That my friend will never happen. What are you scared to actually run against someone or are you too cheap to pay for the campaign fees?–so you try for some silly appointed position to springboard yourself. Good luck.
You have so many enemies my little friend, you will never make it to the big time.
You blazing idiot, spam is tried in small claims court because of the win being so small is it not capped at $7,500?. You are so unhappy with losing you cannot even lose gracefully.
You go tit for tat over small fries and that and the fact you are disorganized with paperwork will keep you from every being famous. Your online slander and name calling is amusing but not half as good as my acid mouth and wit.
If you ever have the guts to spar with me one on one, I would love to take you up on it. You would be intellectually unarmed and left shaking like in your deposition. So frustrated because you didn’t get your way that some “Defendant” outsmarted you and out manuvered you and your video taping of your star stuttering moment of shame. (or is it a lisp?)
I just wish I had the video of peace officers high fiving me after they found out that you cried wolf that some women was going to beat you up. Such a little girl you are Bennie.
You might as well pack up and leave California, all the good guys are taken. Besides they like em younger and more blond.
Just saying….
At least he has a “wife” as in “female”
Bennie on the other hand will have to rent a dyke friend if he chooses to go into politics. Lately, Bennie (armchair political commentary and Demo Die Hard) has been filing paperwork to be appointed to the Santa Monica City Planning Commission.
Whats the matter Bennie? You cannot run in an election or are you too cheap to pay for the campaign? Nevertheless, you have no big money backing you to run for anything and never will. As no one that matters really cares.
What I like to see is you lose and how you throw your tantrums and then the cutsy name calling starts. High moral character indeed, you cannot even lose gracefully and try to spin your losses as some sort of victory.
Your only success is conning child traffickers out of $150K in legal fees to absolutely deliver nothing except name calling. I can’t wait to see you shake and shiver at your next bogus deposition or how about that sneaky way you tried to have the session video taped? That went over like a fart in church didn’t it bozo?
I wish I had a video of peace officers high fiving me after I told them you were upset like a little girl because some big bad woman was going to kick your ass. It is too much fun watching you squirm like a coward that you are then aligning yourself with a shadowy group that is under FBI invesigation because you just wanted to always appear that you are winning something.
See you in the trenches, I just hope that Obama wins I hate to hear a whole year of you crying, melting down and throwing hissie fits over your love Obummer.
Seriously, good luck with Sarah Gorman the planning commissioner of Santa Monica. I have some wealthy friends that are developers in that neck of the woods, they would love to have a little bitch like you to slap around.