United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ASIS INTERNET SERVICES,

Plaintiff,

v.

MEMBER SOURCE MEDIA, LLC,

Defendant.

___________________________________/

No. C-08-1321 EMC

ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS CAN-SPAM

CLAIM

Plaintiff ASIS Internet Services has filed suit against Defendant Member Source Media, LLC

for violation of the federal CAN-SPAM Act of 2003 and violation of California Business &

Professions Code § 17529.5. Previously, the Court stayed litigation of this case pending the

resolution of the appeal in ASIS Internet Services v. Azoogle.com, Inc., No. 08-15979 (9th Cir.). As

in this case, the main issue in Azoogle was whether ASIS had standing to assert the CAN-SPAM

claim. See Docket No. 53 (order, filed on 9/8/2008). On December 2, 2009, the Ninth Circuit

issued its decision in the Azoogle case. See ASIS Internet Servs. v. Azoogle.com, Inc., Nos.

08-15979, 08-177792009 U.S. App. LEXIS 26232 (9th Cir. 2009). 

At a status conference on January 27, 2009, the Court accepted an oral motion made by

Member Source that, based on the Azoogle decision and the decision of the Ninth Circuit in Gordon

v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009), the CAN-SPAM claim should be dismissed with

prejudice for lack of standing. In response, ASIS admitted that the evidence it would offer in

support of standing in this case would be no different from that it offered in Azoogle. ASIS also

Case 3:08-cv-01321-EMC Document 79 Filed 01/28/10 Page 1 of 2
United States District Court

For the Northern District of California

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 Of course, Judge Henderson’s decision in Active Response Group preceded the Ninth Circuit’s

decisions in Azoogle and Gordon.

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admitted that the Ninth Circuit’s analysis in Azoogle would apply to the instant case but argued that

Azoogle effectively gutted the CAN-SPAM Act because no internet service provider (“ISP”) would

ever be able to point to a specific e-mail that caused it harm. ASIS further argued that it believed the

Ninth Circuit’s decision in Gordon was ambiguous and that Judge Henderson’s analysis in Asis

Internet Servs. v. Active Response Group, No. C07 6211 TEH, 2008 U.S. Dist. LEXIS 60535 (N.D.

Cal. July 30, 2008), was most persuasive.1

Having considered the parties’ arguments and the cases cited, the Court concludes that

Member Source has the better argument. Although Azoogle is not binding authority because it is an

unpublished decision, it is still persuasive authority and, having been issued by the Ninth Circuit,

must be given more weight than Active Response Group. Also, the Ninth Circuit’s decision in

Gordon -- while it does not cover each and every instance in which there is standing under the CANSPAM Act -- cannot be characterized as ambiguous. The Ninth Circuit clearly stated that, in order

for an ISP to have standing, the harm it suffered must be “something beyond the mere annoyance of

spam and greater than the negligible burdens typically borne by an IAS provider in the ordinary

course of business.” Gordon, 575 F.3d at 1054. While the Ninth Circuit in Gordon left open the

question of whether a plaintiff in a CAN-SPAM case “must allege and prove that the defendant’s

particular e-mails caused ISP-type harms,” id. at 1054 n.12, ASIS does not seek an opportunity to

assert new allegations or present evidence it contends would satisfy Gordon. Instead, it contends

that Gordon and Azoogle were wrongly decided.

Given the Ninth Circuit’s decision and ASIS’s concession that the allegations here do not

establish standing thereunder, the Court dismisses with prejudice the CAN-SPAM claim.

IT IS SO ORDERED.

Dated: January 28, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:08-cv-01321-EMC Document 79 Filed 01/28/10 Page 2 of 2