NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

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Seattle, Washington 98104

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The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married individual,

d/b/a ‘GORDONWORKS.COM’; OMNI

INNOVATIONS, LLC., a Washington limited

liability company,

Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware corporation

d/b/a ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM; SCOTT LYNN,

an individual; and JOHN DOES, 1-X,

Defendants.

NO. CV06-0204JCC

REPLY TO PLAINTIFFS’ RESPONSE

TO DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

NOTE ON MOTION CALENDAR:

February 16, 2007

ORAL ARGUMENT REQUESTED

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 1 of 14

Gordon v. Virtumundo Inc et al Doc. 108

Dockets.Justia.com
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - i

TABLE OF CONTENTS

I. INTRODUCTION .................................................. 1

II. ARGUMENT ........................................................ 2

A. Plaintiffs have not met their burden in opposing Defendants’ motion for

summary judgment ............................................... 2

B. Defendants’ emails materially comply with CAN-SPAM and CEMA .......... 3

1. The Linke Log is proper and admissible ......................... 3

2. Defendants’ arguments and evidence are largely uncontested .......... 4

3. Plaintiffs’ attempt to create a disputed issue by inventing new

requirements of CAN-SPAM or CEMA must fail .................. 5

4. Plaintiffs’ purported evidence pertaining to “unsubscribe” links is

irrelevant, inadmissible hearsay ................................ 7

5. Plaintiffs fail to offer evidence that email was received ten days

after an unsubscribe request made in the manner provided in an

email .................................................... 7

6. Plaintiffs’ “from name” argument is belied by the declaration of

their own expert ........................................... 8

C. Plaintiffs were not adversely affected by a violation of CAN-SPAM .......... 9

D. Plaintiffs do not provide an Internet access service ...................... 10

E. Plaintiffs fail to identify evidence indicating Scott Lynn is personally liable .... 12

III. CONCLUSION ..................................................... 12

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 2 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 1

I. INTRODUCTION

In their Motion for Summary Judgment (the “Motion”, Dkt. No. 98), Defendants

demonstrate that Plaintiffs cannot establish at least one essential element of each of their claims

under CAN-SPAM (the “Act”) and CEMA. Specifically, (i) Plaintiffs cannot establish that

Defendants’ emails violate either CAN-SPAM or CEMA in any material respect; (ii) Plaintiffs

lack standing because they were not “adversely affected” by a violation of the Act; (iii) Plaintiffs

also lack standing because they are not a provider of Internet access service or interactive

computer service; and (iv) Plaintiffs named Scott Lynn in this lawsuit in bad faith.

Plaintiffs’ response to the Motion (the “Response”, Dkt. No. 104) fails to identify any

specific facts showing there is a genuine issue. On most issues, Defendants’ arguments remain

wholly uncontested. For example, Plaintiffs fail to oppose Defendants’ argument that its emails do

not contain misleading transmission paths. On other issues, the “evidence” Plaintiffs now submit is

wholly irrelevant to any material fact at issue in this action. For example, Gordon testifies in his

declaration about a “hand-held mechanical device” he calls the “Goal Gauge” that he claims to

have developed. On still other issues, Plaintiffs attempt to create disputed issues of material fact

through Gordon’s self-serving declaration contradicting his prior deposition testimony. For

example, Gordon denies in his declaration that he “intentionally solicited commercial emails from

defendants,” notwithstanding his deposition testimony that he opted in to various email programs.

Similarly, he attempts to recant clear and unequivocal testimony that he does not provide email

services by now claiming “[m]y testimony in this section is inaccurate because I misunderstood

the meaning of the word ‘provide’”. Plaintiffs fail to identify any evidence showing a disputed

issue of material fact exists. Defendants are entitled to judgment as a matter of law. See Celotex

Corp. v. Catrett, 477 U.S. 317 (1986); High Tech Gays v. Defense Indus. Sec. Clearance Office,

895 F.2d 563, 574 (9th Cir. 1990). 

///

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///

///

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 3 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 2

II. ARGUMENT

A. Plaintiffs have not met their burden in opposing Defendants’ motion for summary

judgment.

Plaintiffs fail to identify any email that violates CAN-SPAM or CEMA. In the Motion,

Defendants proffer evidence including an extensive summary of the emails upon which Plaintiffs’

claims are based. That evidence demonstrates that Defendants’ emails comply with the

requirements of CAN-SPAM and CEMA pertaining to header information and other matters in

every material respect. Defendants’ arguments are supported by recent case law from the Fourth

Circuit (Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F. 3d 348 (4th Cir. 2006)), the

Supreme Court of Washington (State v. Heckel, 143 Wash. 2d 824 (2001)), and the Washington

Court of Appeals (Benson v. Or. Processing Serv., 2007 Wash. App. LEXIS 31 (Wash. Ct. App.

2007)). Defendants explain in their Motion why Plaintiffs lack evidence to support their case. The

burden now shifts to Plaintiffs to produce specific evidence, through affidavits or admissible

discovery material, to show that a dispute exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323

(1986). If they fail to meet this burden, summary judgment must be entered in Defendants’ favor.

Id. 

In attempting to meet this burden, Plaintiffs may not rest upon the mere allegations or

denials of their pleadings but must set forth specific facts showing that there is a genuine issue for

trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis added). Moreover,

“[t]he general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit

contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266

(9th Cir 1991), citing Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir 1985), cert

denied, 475 U.S. 1048 (1986). “If a party who has been examined at length on deposition could

raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this

would greatly diminish the utility of summary judgment as a procedure for screening out sham

issues of fact.” Foster, supra, 772 F.2d at 1462. This rule applies to conflicts between affidavits

and interrogatory responses as well as deposition testimony. School Dist. No. 1J, Multnomah

County v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir 1993).

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 4 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 3

Plaintiffs have not met their burden. In their Response, Plaintiffs continue to make the

same broad, unsupported allegations as are in the First Amended Complaint (Dkt. No. 15)

(“FAC”), while failing to address most of Defendants’ arguments and evidence. Plaintiffs do not

discuss any of the case law cited by Defendants, nor do they cite any contrary authority. Rather

than pointing to specific evidence or law, Plaintiffs merely assert that various matters are disputed.

This is insufficient to meet their burden, and Defendants’ motion for summary judgment should be

granted.

B. Defendants’ emails materially comply with CAN-SPAM and CEMA.

1. The Linke Log is proper and admissible.

The Motion is supported by, among other things, a comprehensive summary of the first

18,859 emails provided by Plaintiffs in discovery (the “Linke Log”, Dkt. Nos. 102-1 - 102-5). The

Linke Log sets forth the <date>, <to>, <from>, <subject> and <reply-to> fields of each email,

identifies each email’s point of origin and transmission path, summarizes each email’s content, and

sets forth each email’s full header. Plaintiffs object to the Linke Log because: 1) the Linke Log is

allegedly not properly authenticated pursuant to Federal Rules of Evidence 901 (Response at

18:16-18); and 2) the original emails summarized in the Linke Log allegedly must be placed in

evidence pursuant to Federal Rules of Evidence 1002. Id. at 19:16-22. Notably, Plaintiffs do not

claim that the Linke Log is in any way inaccurate. Plaintiffs’ objections are without merit, and the

Linke Log may properly be considered by the Court.

Plaintiffs allege that “Mr. Linke does not even claim to have first hand knowledge of all

the materials placed in the logs,” (Response at 19:2-3). However, as set forth in Mr. Linke’s

declaration (quoted by Plaintiffs themselves), Mr. Linke personally “reviewed and corrected” the

work of the contract attorneys who prepared the log. (Response at 19:8-10, citing Linke Decl.,

Dkt. No. 102, ¶ ¶ 7, 8 and 11). This process required comparing each email to the summary

contained in the Linke Log, and therefore required Mr. Linke to personally review each of the

18,859 emails summarized in the Linke Log. See Declaration of Derek Linke in Support of Reply

to Response to Defendants’ Motion for Summary Judgment, filed concurrently herewith, at ¶ 2.

Pursuant to Rule 901, the authentication requirement “is satisfied by evidence sufficient to

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 5 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 4

support a finding that the matter in question is what its proponent claims.” Mr. Linke’s

declaration satisfies this standard, and the Linke Log is properly authenticated.

The Linke Log constitutes a summary of documents provided by Plaintiffs. Plaintiffs cite

Rule of Evidence 1002 in contending the Linke Log is not evidence of the original, but an original

is not required to prove the content of a writing when “otherwise provided in these rules”. Fed. R.

Evid. 1002. Rule 1006, in turn, provides,

The contents of voluminous writings, recordings, or photographs which cannot

conveniently be examined in court may be presented in the form of a chart, summary,

or calculation. The originals, or duplicates, shall be made available for examination

or copying, or both, by other parties at reasonable time and place. The court may

order that they be produced in court.

Fed. R. Evid. 1006. The Linke Log summarizes over 20,000 pages of emails, which certainly

qualify as “voluminous writings...which cannot conveniently be examined in court.” Further, the

documents summarized were produced by Plaintiffs and the originals (both electronic and paper)

have been available to Plaintiffs at all times during this litigation. 

2. Defendants’ arguments and evidence are largely uncontested.

The Linke Log demonstrates that Defendants’ emails comply with the requirements of

CAN-SPAM and CEMA pertaining to headers, transmission paths and subject lines in every

material respect. As to the matters discussed below, Plaintiffs do not cite any evidence or

authority to counter Defendants’ claims, which consequently stand unopposed. Summary

judgment should be granted as to those issues.

It is undisputed that Defendants’ emails do not contain false or misleading subject lines.

CAN-SPAM imposes liability only if a subject heading would be likely to mislead a recipient

acting reasonably under the circumstances. 15 U.S.C. § 7704(a)(2). This requires consideration of

the subject heading in context. Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F. 3d 348

(4th Cir. 2006). Plaintiffs do not identify any email message which would mislead any reasonable

person by the “subject” line when considered in context, that is, in connection with the

information contained in the “from” line. See Motion at 20:26-23:18. Defendants’ Motion thus

stands uncontested with respect to whether Defendants’ emails contain false or misleading subject

lines, and the Motion should be granted with respect to that issue. 

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 6 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 5

It is also uncontroverted that Defendants’ emails do not contain misleading transmission

paths or header information. In Benson v. Or. Processing Serv., 2007 Wash. App. LEXIS 31

(Wash. Ct. App. 2007), the Washington Court of Appeals held that when an email identifies the

sender’s domain name, physical address and telephone number and contains an “unsubscribe link”,

the email does not misrepresent or obscure any information identifying its point of origin or

transmission path. Id. Defendants have established that their emails meet these criteria. See

Motion at 26:21-27:16. Plaintiffs do not contest Defendants’ arguments pertaining to header

information or transmission paths except insofar as the “from name” part of the “from line” does

not contain the name of a person. Accordingly, at a minimum, Defendants’ Motion should be

granted with respect to Plaintiffs’ claims under both CAN-SPAM and CEMA insofar as such

claims are based on allegedly false or misleading header information other than that contained in

the “from” line (which claims are addressed below).

Finally, Plaintiffs do not contest that Defendants’ emails do not use third party domain

names without permission of the third party. Plaintiffs’ FAC alleges that Defendants’ emails

violate CEMA by using a third party domain name without permission of the third party. FAC ¶¶ 

4.2.1. However, Plaintiffs have never identified any email that used any third party domain name

without permission of the third party. Summary judgment should be entered in Defendants’ favor

on this issue.

3. Plaintiffs’ attempt to create a disputed issue by inventing new requirements

of CAN-SPAM or CEMA must fail.

Plaintiffs contend that “there exists a question of material fact as to whether the bodies of

thousands of Defendants’ spam email messages contain any information at all, except for HTML

code.” (Response at 21:12-14). Plaintiffs thus imply that email messages in HTML format are

somehow improper, and that HTML code does not constitute information for purposes of CANSPAM and CEMA. This argument suffers from at least three shortcomings, each of which is fatal

to Plaintiffs’ position.

First, the underlying contention, i.e., that thousands of messages contain no information

“except for HTML code,” appears for the first time in this litigation in the affidavit of James

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 7 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 6

Gordon submitted in support of the Response. Gordon was questioned extensively at his

deposition and in interrogatories regarding the basis for his claims, and never mentioned this

purported issue. See generally Gordon Deposition, Dkt. No. 101. Even at this late date, Gordon

fails to identify a single one of the supposed “thousands” of emails to which he refers. This

general, self-serving allegation is insufficient to create a disputed issue. Foster, supra, 772 F.2d at

1462.

Second, and more significantly, Plaintiffs offer no authority whatsoever for the proposition

that HTML emails are prohibited by CAN-SPAM (which they are not), or that CAN-SPAM

requires that any or all information in an email be in plain text rather than HTML format (which it

does not). Plaintiffs cannot create a disputed issue of material fact in this manner. Even if all of

Defendants’ emails contained only HTML code, they would not violate CAN-SPAM or CEMA,

provided they otherwise complied with the requirements of those statutes. Plaintiffs do not, and

cannot, point to any law or regulation that suggests otherwise, for their argument has no basis in

law. 

Third, the only evidence Plaintiffs cite to support this argument is a technical advisory

from Microsoft dated November 8, 2005 (and therefore postdating most of the emails at issue in

this lawsuit) (Ex. F to Gordon’s Declaration in Support of Partial Summary Judgment, Dkt. No.

63-10) (the “Microsoft Bulletin”). The Microsoft Bulletin is offered for the truth of the matters

asserted therein, and is therefore inadmissible hearsay under Federal Rules of Evidence 802. It is

also simply irrelevant to any material fact in this action. A user who disables HTML in his email

hardly has a basis to complain that he cannot see HTML text, any more than a user who sets his

default font size to “8” has a basis to complain that he cannot read his emails because the text is

too small. Plaintiffs’ unsupported and novel theories regarding HTML emails do not constitute

“specific facts showing that there is a genuine issue for trial” with respect to whether any of

Defendants’ emails contain false and misleading subject lines or fail to include a postal address.

Defendants are therefore entitled to summary judgment on these issues.

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Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 8 of 14
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 7

4. Plaintiffs’ purported evidence pertaining to “unsubscribe” links is irrelevant,

inadmissible hearsay.

Plaintiffs contend that an issue of material fact exists with respect to “whether Defendants

provided a working mechanism allowing recipients to opt out” of further emails. (Response at

20:13-15.) Plaintiffs do not, however, identify any emails at issue in this case that lack a working

unsubscribe link. Instead, Plaintiffs point to approximately ninety letters of complaint, addressed

to Defendants, which were provided to Plaintiffs by Defendants in discovery. The letters do not

establish any violation of CAN-SPAM (even with respect to the authors) because it cannot be

determined from the letters that the requirements of the Act were violated. The letters, which

constitute every written complaint mailed to Defendants in history, represent an almost

imperceptibly small percentage of emails sent by Defendants. If anything, they establish

Defendants’ compliance with CAN-SPAM rather than the contrary. Whichever way the sword

might otherwise cut, the letters are inadmissible hearsay because Plaintiffs offer them to prove the

truth of the matters asserted therein. The letters are also inadmissible because they are irrelevant;

none pertains to any of the emails at issue in this lawsuit. Finally, as evidence of prior bad acts, the

letters are inadmissible to prove that Defendants acted in conformity therewith pursuant to

Federal Rules of Evidence Rule 404(b). Because the letters are inadmissible, and not probative of

any violation, Plaintiffs have offered no specific facts showing any genuine issue for trial.

Defendants are entitled to summary judgment on the issue of whether their emails contained

working unsubscribe links.

5. Plaintiffs fail to offer evidence that email was received ten days after an

unsubscribe request made in the manner provided in an email.

Plaintiffs next contend that “there also exists an issue of material fact as to whether

Gordon opted out of receiving email from the Defendants.” (Response at 21:17-19). In support of

this contention, Plaintiffs point only to the inadmissible complaint letters described above and

Gordon’s (changed) deposition testimony (in which he claims to have clicked on unsubscribe links

with respect to Virtumundo, but admits that he did not with respect to Adknowledge) (Ex. A to

Gordon Declaration in Support of Response (Dkt. No. 107) at 3). This falls far short of meeting

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 9 of 14
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REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 8

Plaintiffs’ burden. Section 7704(4)(a)(1) of the Act prohibits initiating transmission of an email to

an address that has opted-out more than 10 days after the opt-out. In order to establish a violation

of that section, a Plaintiff must show that he opted out using a mechanism provided in the email,

that he never opted back in, and that he received an email from the same sender at that address

more than 10 days after opting out.

In the instant action, Gordon cannot identify the date on which he claims to have opted

out, nor the email address(es) from which he supposedly opted out, nor identify any email which

he received at that address more than 10 days after that opt out. Gordon simply claims that he did,

in fact, opt out, but acknowledges he has no evidence to support that claim. (Gordon Dep.

408:16-409:19.) (“Q: You didn’t, however, retain any evidence of clicking on those links [opting

out], correct? A: That’s correct.”) Even if Gordon could establish that he opted out, which he

cannot, his argument is wholly undone by his admission that he may have subsequently opted in

again. (Gordon Dep. at 461:10-462:19.) See 15 U.S.C. § 7704(a)(4)(B) (no obligation to refrain

from sending emails after opt-out if there is affirmative consent by the recipient subsequent to the

request).

Plaintiffs have not, and cannot, come close to meeting their burden on this issue. Plaintiffs

simply cannot establish that Defendants initiated the transmission of a commercial electronic mail

to a recipient who had previously opted out using a mechanism provided by the sender.

Accordingly, Defendants’ Motion should be granted as to this issue.

6. Plaintiffs’ “from name” argument is belied by the declaration of their own

expert.

Plaintiffs urge the Court to consider the Internet Engineering Task Force’s “Request for

Comment” (RFC) system even though it is irrelevant to any issue in this case. The Request for

Comment system has no bearing on whether the “from” line of an email accurately identifies the

sender for the purpose of CAN-SPAM. The Request for Comment system has no bearing on

whether the “from” line of an email is false or misleading for the purpose of CEMA. In truth,

Plaintiffs themselves now concede that RFCs “do not have the force of law” and only provide the

“context that existed at the time Congress passed the CAN-SPAM act.” (Response at 3:6-13). 

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 10 of 14
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1

 Defendants move to strike the Resnick declaration because Plaintiffs failed to identify

Resnick as a witness, and Defendants consequently were denied the opportunity to cross-examine

the witness. Additionally, his testimony is limited to a discussion of Requests for Comments,

which are irrelevant to any material issue in this case.

REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 9

Plaintiffs’ own expert, Pete Resnick1, testifies in his declaration that the RFC permits an

email sender to provide no information at all in the “from name” field. In any event, Requests for

Comments have no bearing on whether the emails in this case violate a statute. Plaintiffs have

failed to produce specific evidence demonstrating any genuine issue for trial.

C. Plaintiffs were not adversely affected by a violation of CAN-SPAM.

Plaintiffs lack standing under CAN-SPAM unless they were adversely affected by a

statutory violation. 15 U.S.C. § 7706(g)(1). The Motion establishes that Plaintiffs have not

experienced any actual damages. Plaintiffs’ Response alleges only that Plaintiffs were “forced to

wade through thousands of e-mails sent by Defendants to locate legitimate e-mail” (Response at

17: l. 22-23).

The time and resources Gordon expended were exclusively directed toward litigation

preparation rather than managing spam. See, e.g., Gordon Declaration in Response and

Opposition to Defendants’ Motion to Compel Segregation of Emails, (Dkt. No. 78), ¶ 3 (“The job

of collecting, sorting, and compiling records on this and other defendants is a very

time-consuming process”). Mr. Gordon himself appears to be the proximate cause of this burden,

since he invites others to send him tens of thousands of emails that have already been identified as

spam. See id. (“my clients send me emails that are unsorted in lots of 10-50,000 at one time”). 

Plaintiffs actually benefit from spam, as Gordon admits. (Gordon Dep. 222:16-18). The

only revenue Omni has ever received has been from spam litigation. (Gordon Dep. at 35:11-17.) 

Mr. Gordon describes himself as being in the “spam business” and has had no income other than

settlements received from spam litigation for several years. (Gordon Dep. at 32:16-35:10.) One

whose entire livelihood is based on spam litigation can hardly be said to suffer an “adverse affect”

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ATTORNEYS AT LAW, LLP

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2

 Defendants’ motion to compel Plaintiffs to disclose the amounts of settlements received

in spam litigation is currently pending (Dkt. No. 87.)

REPLY TO RESPONSE TO MOT. FOR SUMM. J.

CASE NO. CV06-0204C - 10

from receiving spam.2

Sorting through spam in preparation for litigation cannot be what Congress had in mind

when it chose to limit standing under the Act to providers of Internet access services adversely

affected by violations of the Act. The Court should decline to condone this interpretation, and

should hold that Plaintiffs lack standing to bring suit under the Act.

D. Plaintiffs do not provide an Internet access service.

Plaintiffs also lack standing because they do not provide an Internet access service. It is

axiomatic that courts should decline to elevate form over substance when applying the law. See,

e.g., Escobedo v. Illinois, 378 U.S. 478, 486 (1964) (declining to “exalt form over substance” in

determining the temporal scope of Sixth Amendment protections); Crowell v. Benson, 285 U.S.

22, 53 (1932) (“[R]egard must be had . . .not to mere matters of form but to the substance of

what is required”); In re: CM Holdings, Inc., 301 F.3d 96, 102 (3d Cir. 2002) (In applying tax

law, courts look beyond formal compliance with tax code and analyze fundamental substance of

transactions). Here, Congress has made it clear that it intended to limit standing under CANSPAM to “bona fide Internet service provider(s)” providing “actual Internet access service to

customers.” 150 CONG. REC. E72 (attached as Exhibit M to Townsend Decl. in support of

Motion for an Undertaking (Dkt. No. 41)). To that end, in presenting the bill eventually codified

as CAN-SPAM to the House of Representatives, Hon. John D. Dingell stressed that “we intend

that Internet access service providers provide actual Internet access service to customers.”Id.

(emphasis added). The question the Court must determine is whether Plaintiffs are among those to

whom Congress intended to grant standing to sue under CAN-SPAM.

Neither plaintiff has ever held itself out to the public as a provider of Internet access

services. Neither plaintiff has ever made any money providing such services. (Gordon Dep. at

32:16-35:17.) Neither plaintiff is in the business of providing such services. Gordon is in the

“spam business”, id., and “the purpose of Omni Innovations, LLC is to serve as a vehicle for the

Case 2:06-cv-00204-JCC Document 108 Filed 02/16/2007 Page 12 of 14
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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CASE NO. CV06-0204C - 11

development and marketing of intellectual property” by Gordon. (Gordon Decl. in support of

Response at ¶ 14.) Although Plaintiffs now submit self-serving declarations attesting to the

various services they supposedly provide, Plaintiffs have previously demonstrated an almost total

lack of understanding of those services. For instance, Plaintiffs testified that they do not even

know the means by which their “clients” can access the Web and get their e-mail. (Gordon Dep.

212:13-213:12.) Plaintiffs themselves cannot articulate which services they provide and which are

provided by GoDaddy, a domain name registrar and hosting company. (Gordon Dep. 473:13.)

Defendants suggested some common characteristics of Internet access services, such as

having root access, providing a DNS server, and directly participating in the technical aspects of

providing Internet services (as opposed to merely reselling). Under oath, Gordon either admitted

he was not responsible for any of these tasks, or he did not know whether he had the ability to do

them. In an effort to defeat this Motion, Gordon now contradicts his deposition testimony or

explains he has since learned he can perform such technical functions (but not that he does).

Defendants did not suggest these responsibilities were all that qualified an Internet access service.

However, even if Gordon has since learned he has such ability, he never before performed the

technical functions and they should not be considered when evaluating whether Plaintiffs qualify

as an Internet access service. Plaintiffs do not provide an Internet access service. Rather, they

hired GoDaddy to provide an Internet access service and Plaintiffs pass that service along to straw

man “clients”.

To permit those in Plaintiffs’ position to bring claims under CAN-SPAM would eviscerate

any limitation Congress intended to impose by declining to provide a cause of action to individual

recipients of unsolicited commercial email. Congress intended for CAN-SPAM to provide a cause

of action for those actually in the business of providing Internet access services to consumers,

whose businesses are harmed by spam. It did not intend to provide a cause of action for

opportunistic plaintiffs who do not actually provide services, but merely arrange them for the

purpose of gaining standing under the Act. To allow Plaintiffs standing would be not only to

elevate, but to exalt, form over substance. The Court should decline to do so.

///

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Seattle, Washington 98104

(206) 274-2800

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E. Plaintiffs fail to identify evidence indicating Scott Lynn is personally liable.

Plaintiffs raise two novel theories with respect to Defendant Scott Lynn: 1) Lynn is liable

for the acts of Virtumundo because he is listed as the administrative contact for domain names

registered to Virtumundo; and 2) Lynn is liable for the acts of Virtumundo because he is its sole

shareholder. Neither theory is supported by any authority, and both are devoid of merit. 

Plaintiffs’ suggestion that the person who serves as the administrative contact for a 

domain name is liable for the acts of the registrant will likely come as a surprise to GoDaddy,

whose Domains By Proxy subsidiary is the administrative contact for the domain name

<<ijusticelaw.com>>, which is registered to Plaintiffs’ counsel. Plaintiffs’ contention is analogous

to a claim that the registered agent for a corporation is liable for the corporation’s acts by virtue

of serving in that capacity. This is obviously not the case. Plaintiffs’ contention that a sole

shareholder of a corporation is, by virtue of being such, liable for the acts of the corporation is

contrary to the entire notion and existence of the corporate form. See Burnet v. Clark, 287 U.S.

410, 415 (1932). Plaintiffs’ claims against Scott Lynn individually are frivolous, and summary

judgment should be granted in Mr. Lynn’s favor.

III. CONCLUSION

Defendants’ Motion presented evidence that Plaintiffs could not establish at least one

required element of each of their claims. The burden then shifted to Plaintiffs to come forward

with specific, admissible evidence to show that disputed issues of material fact remain for trial.

Plaintiffs failed to do so. To the limited extent they attempt to defeat Defendants’ arguments, their

evidence is inadmissible, irrelevant, or unpersuasive, if not all three. Plaintiffs’ claims should be

dismissed and judgment should be entered in favor of all defendants.

DATED this 16th day of February, 2007.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, No. 26967

Roger M. Townsend, No. 25525

ADKNOWLEDGE, INC.

/s/

By:

Michael R. Geroe, General Counsel

pro hac vice

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