Is Dan Balsam Hero or Villain?Written by Pace Lattin
August 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. “