Spammers Sue Spam Victim For $4 Million

fronck writes "Self-declared anti-spammer Mark Mumma, a web hosting and email service provider, has apparently been sued for just under $4 million by cruise.com and their parent company Omega World Travel after they were ordered to stop sending him emails and comply with Oklahoma's CAN-SPAM act. Mumma intends to see the trial through court and meanwhile the spam continues unabated. More insight available at Ars Technica."

Comments

Standard SLAPP suit

[bigtallmofo]

The courts are very familiar with SLAPP suits (Strategic Lawsuit Against Public Participation).

Many states are adopting Anti-SLAPP legislation that should make this easy to get dismissed and as TFA suggests impose sanctions against the plaintiff.

Re:Standard SLAPP suit

[Joffrey]

As far as I can tell, though, this isn't a SLAPP suit. It seems to be a pre-emptive filing to gain "home court" advantage.

Firstly, while I wholeheartedly condemn spam and spammers, we should note that the "article" we all read was actually a press release by one party in litigation. There are probably some additional facts we don't know.

For example, it appears that Mummers sues many spammers in his home jurisdiction (OK) because of the favorable laws there, and makes a tidy profit off of his side business of suing spammers. While the spammer in question is no doubt sleazy, it seems that they knew a lawsuit was almost certainly coming in Oklahoma, so they pre-emptively filed it in Virginia (their home turf) so as to make it easier to litigate.

Follow-up

[Trolling4Columbine]

FTOFA:

"Omega World Travel has argued that Mumma violated their trademark and copyright by using images of the company's founders and the company's logo on his website, and they also allege that Mumma defamed individuals associated with Cruise.com by posting personal insults on his site."

I don't want to appear to support spammers, but if there is merit to the claim, Mumma might have been asking for this.

Re:I'd like to know more

[necrodeep]

According to: http://www.suedbyspammers.com/about/index.html

1.Defamation (for calling them spammers)
2.Trademark Infringement

Easy slashdot links

[AnonymousCowheart]

Easy /. links to the spammers sites are:
here and
here
Please click away

They have an 800 number on their front page.

[Anonymous Coward]

Show them what spam is about -- call.

Re:Wow, just wow.

[Coolfish]

Just like the judge smacked down the suit against Oreo cookies making people fat?

The lawsuit was about how Oreo cookies did not disclose that they contain trans fatty acids (for which the safe level of consumption is 0 grams per day. Each Oreo cookie used to contain 1 gram of trans fat). This is like suing a company that fails to disclose that they are using a poison to hold the cookie together (which what hydrogenated fats should be, and practically have been, classified as). (disclaimer: you should read up on trans fats. not all trans fats are man made, artificial, or necessarily unhealthy.)

You have ALL missed the point

[bsdbigot]

TFA is decidedly one-sided. By looking at Mumma's *own* websites, this is a pretty clear-cut case of entrapment by Mumma.

For example, head over to SueASpammer, and you will see right off the bat he calls for people to

1. set a trap
2. sue

Reading a little further, he implies that people should falsify their identity when OPTING IN TO AN EMAIL LIST, and then later using that as leverage (e.g. say "Who the hell is Joe Blow? My name is John Public). I'd have to look into any applicable law, but in my dictionary, that constitutes fraud.

Number three, if you read Omega's suit, they allege that Mumma did not comply with the provided opt-out procedure, but instead called them and almost immediately started threatening them. Mumma allegedly would not provide his information so that they might comply with his "request" to be removed. Instead, he was belligerent, insulting, and threatening. This may not be illegal, but it is certainly in poor taste and is a mark against him. Lawyers and judges don't want to deal with fanatics, for the most part - they want to deal with reasonable people that have a legitimate claim.

Number four, since Mumma's request for removal was NOT VALID via his own stupid actions, and since he allegedly SIGNED UP for this "spam," via indirect admission at SueASpammer.com procedures, this is not a valid claim under CAN-SPAM. Furthermore, this also invalidates Mumma's claim under Oklahoma law, see 776.5.3 at SpamLaws OK.

I would not at all be surprised to see Omega et al. come out of this not only unscathed, but smelling like a rose.

Re:You have ALL missed the point

[Manchot]

It's a good thing that entrapment only applies to criminal cases, then. Even then, the standards under which it applies are very high. See this Slate article for more details:

1. The idea of committing the crime came from law enforcement officers, rather than the defendant.
2. The law enforcement officers induced the person to commit the crime.
3. The defendant was not ready and willing to commit this type of crime before being induced to do so.

Even if it did apply in civil cases (which it doesn't), this wouldn't even come close to entrapment. Not one of the three legal conditions was satisfied. Basically, you've made the mistake of thinking that traps and entrapment are one in the same, but they're not.

Furthermore, though it may be fraud in a loose sense of the word, it doesn't even come close to criminal fraud. Thousands upon thousands of cases have hinged upon evidence gained from FBI agents posing as 13-year-old girls or undercover cops posing as crackheads, all of whom give phony names. Giving a false name for the sake of obtaining evidence is completely legal, unless that false name gives the impression that you are another specific person (e.g., if you are a drug dealer and the cop comes to you claiming to be your boss). Random names, though, are just fine.

Re:You've missed the point

[hawk]

I am a lawyer, but this is not legal advice. If you get your legal advice from the web, get your head checked.

I'm going to make a few assumptions here:
1) That the Defendand doe indeed have no significant contacts to the state in which the suit was filed.
2) That trademark infringement has similar rules to copyright infringement, which require the action to be brought in a district in which the defendant "can be found."
3) That the usage of the spammer's trademarks are *clearly* and *indisputably* within the realm of fair use and satire.

If all of these apply, it is hard to fathom a good-faith basis for an attorney to have believed that an action should have been justified.

With that conclusion, the filing would be in violation of Rule 11 of the Federal Rules of Civil Procedure, and counsel for the plaintiff would be subject to sanctions, including court costs.

Furthermore, in most states, sanctions in excess of $1,000 or so (except for discovery sanctions) must be reported to the state bar for disciplinary purposes.

Additionally, the filing of a complaint with no good faith basis is a violation of ethical rules, and subject to discipline. Assuming that it is the attorney's first offense, I'd be surprised if it results in disbarment or even suspension; more likely a reprimand or private cautionary letter.

hawk, esq.

SCO

[hawk]

See disclaimer in my other post about this not being legal advice.

To dismiss a case on the initial filing, the judge must find that even if everything in the complaint were proved, the plaintiff would not be entitled to relief. That's not the case when alleging copyright infringement.

The next chance would be a summary judgment motion. At that point, evidence is weakly tested with the presumption that the fact finder (judge or jury) will take it in its most favorable light, and the evidence for the other party in the least favorable. If no reasonable person could find for the plaintiff under those circumstaances, then summary judgement is granted.

That's not a hard standard of the plaintiff to meet . . .

hawk, esq.

Overlawyered.com : "Loser Pays"

[Mad Man]

Re:You've missed the point (Score:2, Interesting)
by lowrydr310 (830514) on Thursday March 17, @09:12AM (#11964442)

Is it possible for the Plaintiff (the spammers in this case) to be ordered to pay the Defendant's legal bills when they (the plaintiffs) lose the case?

IANAFL

It's possible, but I don't know how likely it is. The trial lawyers, being a very powerful lobby, have consistently opposed the idea. See http://www.overlawyered.com/archives/000199.html

June 14, 2003
Essay on loser-pays

The following essay was written circa 1999 by our editor and formerly appeared on the site's topical page on loser-pays.

* * *

America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward "making whole" its prevailing opponent. It's long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.

Overlawyered.com's editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the "Contract with America". Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, "Strict Liability for Lawyering".

As other countries recognize, the arguments in support of the indemnity principle are overwhelming. They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements. Sad to say, the American bar, though loud in proclaiming that every other industry and profession should be made to pay for its mistakes, changes its mind in this one area, demanding an across-the-board charitable immunity for its own lucrative industry of suing people.

Also in 1995, Rep. Chris Cox (R-Calif.) published a succinct defense of the loser-pays principle, terming it the "full recovery rule" and pointing out that it would improve the position of a large number of plaintiffs with meritorious claims who currently go undercompensated because of the need to pay their lawyers large sums which cannot be recovered from the opponent.

Author James Fallows of The Atlantic called the idea "overdue" and included it in his list of "Ten New Year's Resolutions for America" (National Public Radio).

The principle in other countries: .....

Go to http://www.overlawyered.com/archives/000199.html to read the rest of it.

An example from Overlawyered.com's "Loser Pays" archives (bold added):

March 15, 2005
"Doctor fights, wins; lawyers aren't swayed"

Dr. Zev Maycon has been sued four times in three years; he's been dismissed before trial each time, but has missed weeks of work as a result, to the

Re:Wow, just wow.

[Anonymous Coward]

I know the people behind the Oreo suit. Yes, what you're describing is correct, they were suing over transfatty acids. But they never expected to win the suit, it was merely a publicity stunt designed to get media attention in order to tell the public that transfatty acids are bad.

There are no FDA regulations that say you have to show the amount of transfatty acids, unlike everything else you see in the package.

So, yes, they fully expected the suit to be smacked down.

You've misread his website.

[aug24]

He says that when you get spam (completely unsolicited), click on it and fill in unique (thus fake) details. Then when you are contacted you can link the company to the spam.

Next: why should he comply with their opt-out procedure. Had you read the article carefully, you would see that he talking about spam that he certainly did not opt in to, merely responded to.

I hope and expect he will win.

Justin.

Re:Wow, just wow.

[operagost]

You have a flair for the dramatic, but the FDA decided last year that the safe level was less than 2g per day in a 2000 kcal diet. That's more than zero.

http://www.healthcastle.com/trans.shtml

I might also note that the FDA does not require that trans-fatty acids be listed explicitly on the nutrition facts label. It does require that they be properly counted, so if you look at the label and see this:

3g total fat
1g unsaturated
1g saturated

then the trans-fatty is the leftover amount, 1g.

Worked for cruise.com

[theskunkmonkey]

I worked for Omega World Travel in their "web" department and worked specifically on the cruise.com property. This was a number of years ago just before the DotCom bust. I had the chance to work directly with the owner Gloria Bohan and her husband Daniel Bohan. It's a woman owned biz on paper, he really runs the show. At the time I worked there, they had not yet grapsed the concepts of the internet well yet, but had very hot properties (cruise.com) that were pulling in very lucrative money from what I gathered. They were expending large sums in purcashing domains and had plans to grow the division. They did recognize the potential of the internet market, but had a very poor understanding of technical details at the time. I was originally hired to increase their standings in search engines and design banners for advertising. I used the usual techniqes of the day including keyword stuffing to get better positioning. Of course this included using some names of competitors. To show you how clueless the owner was at the time, he saw the competitors name in the keywords during a weekly meeting and proceeded to whine (yes, he whined like a child, stamped his feet, and had tantrums) about his competitor showing in the keywords. I attempted to explain the reasons and was told I didn't know what I was doing (the main reason I was hired), to remove the keywords, and go back to my office. Suffice to say that was my last day on the job. Now I read this article and I am not suprised one bit by the actions of cruise.com and OWT. I am sure that once Dan grasped the concept of email solicitaion the flood gates were opened. To see that he has been stupid enough to direct his legal department to follow this course of action is about par for him. He still dosen't fully understand the whole picture. I sure hope the people I worked with there have been smart enough to move on.