NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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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

[PROPOSED]

ORDER GRANTING

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

THIS MATTER comes before the Court on the Motion for Summary Judgment of

Defendants Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn (collectively

“Defendants”). Having reviewed the Complaint, Defendants’ Motion for Summary

Judgment and the Declarations of Dr. Neal Krawetz, Derek Linke and Derek Newman in

support thereof, Plaintiff’s Response to Defendants’ Motion for Summary Judgment, and

Defendants’ Reply in Support of the Motion for Summary Judgment, the Court finds and

rules as follows:

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 1 of 7

Gordon v. Virtumundo Inc et al Doc. 98 Att. 1

Dockets.Justia.com
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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[PROPOSED] ORDER GRANTING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

CASE NO. CV06-0204C - 2

1. No genuine issue of material fact exists with respect to the issues raised by

Defendants in their Motion.

2. The effective date of CAN-SPAM, 15 U.S.C. § 7701 et seq., was January 1, 2004.

15 U.S.C. § 7701 (note).

3. At some time prior to 2003, Plaintiff Gordon assigned email accounts at the

<<gordonworks.com>> host to family members and others. Gordon did not

charge users for such accounts. (Gordon’s Response to Virtumundo Interrogatory

No. 24.)

4. The technical aspects of providing email services in connection with such accounts

were accomplished not by Gordon himself, but by his hosting provider (currently

GoDaddy.com. Inc. (“GoDaddy”)). (Gordon Dep. At 213:25.)

5. At some time in 2003, prior to the effective date of CAN-SPAM, the individuals to

whom Plaintiff Gordon had assigned email accounts at the <<gordonworks.com>>

host relinquished those accounts. (Gordon Dep. at 472:14.)

6. After May 2005, Plaintiff Omni Innovations, LLC (“Omni”) associated certain

domain names registered to third parties with the server it leases from GoDaddy,

and assigned users email accounts at those domains. Omni did not charge users for

these services. (Omni’s Response to Virtumundo Interrogatory No. 22.)

7. The technical aspects of providing such domain name services and email services

in connection with such accounts were accomplished not by Omni itself, but by its

hosting provider (currently GoDaddy). (Gordon Dep. at 109:2.)

8. Neither plaintiff has offered any evidence of actual damages or adverse affect.

(Gordon Dep. at 319-327.)

9. The “from” lines of Defendants’ emails include return addresses at domain names

registered to Defendants, contact information for which is available through

WHOIS. (Krawetz Rpt. at 15; Krawetz Decl. at 20.)

10. Defendants’ email headers allow Defendants to be easily identified and located.

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 2 of 7
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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[PROPOSED] ORDER GRANTING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

CASE NO. CV06-0204C - 3

(Krawetz Rpt. at 24.)

11. Defendants are accurately identified in the “from” lines of their emails. (Krawetz

Rpt. at 15.)

12. Section 7704(a)(2) of CAN-SPAM prohibits a person from transmitting

commercial email: 

if such person has actual knowledge, or knowledge fairly implied on the basis

of objective circumstances, that a subject heading of the message would be

likely to mislead a recipient, acting reasonably under the circumstances, about

a material fact regarding the contents or subject matter of the message

13. Plaintiffs have failed to establish that Defendants knew, or should have known on

the basis of objective circumstances, that any subject heading of their emails

would be likely to mislead a recipient, acting reasonably under the circumstances,

about a material fact regarding the contents or subject matter of the message. 

14. Plaintiffs have failed to establish that Defendants initiated the transmission of a

commercial electronic mail message that does not contain a functioning return

electronic mail address. 15 U.S.C. §7704(a)(3)(a).

15. Plaintiffs have failed to establish that Defendants initiated the transmission of a

commercial electronic mail message to a recipient who had previously submitted,

in a manner specified in the message, a request not to receive future commercial

electronic mail messages from that sender at the electronic mail address where the

message was received, and who had not thereafter affirmatively consented to

receive such messages. 15 U.S.C. §7704(a)(4).

16. Plaintiffs have failed to establish that Defendants initiated the transmission of any

commercial electronic message to a protected computer in which the message did

not provide: i) clear and conspicuous identification that the message is an

advertisement or solicitation; (ii) clear and conspicuous notice of the opportunity

to decline to receive further commercial electronic mail messages from the sender;

or (iii) a valid physical postal address of the sender. 15 U.S.C. §7704(a)(5). 

17. Plaintiffs have failed to establish that Defendants violated section 7704 (a)(1), (b),

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 3 of 7
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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[PROPOSED] ORDER GRANTING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

CASE NO. CV06-0204C - 4

or (d) of this title, or have engaged in a pattern or practice that violates paragraph

(2), (3), (4), or (5) of section 7704 (a). 

18. Plaintiffs have failed to establish that Defendants initiated the transmission of any

emails that fail to contain a working unsubscribe link. 

19. Plaintiff Gordon has failed to establish that he is a provider of Internet access

service adversely affected by a violation of section 7704 (a)(1), (b), or (d) of CANSPAM, or by a pattern or practice that violates paragraph (2), (3), (4), or (5) of

section 7704 (a). Plaintiff Gordon therefore lacks standing under CAN-SPAM.

20. Plaintiff Omni has failed to establish that it is a provider of Internet access service

adversely affected by a violation of section 7704 (a)(1), (b), or (d) of CAN-SPAM,

or by a pattern or practice that violates paragraph (2), (3), (4), or (5) of section

7704 (a). Plaintiff Omni therefore lacks standing under CAN-SPAM.

21. Defendants’ emails contain header information that is not materially false or

materially misleading. 15 U.S.C. § 7704(a)(1)(b).

22. Defendants’ email headers are not false or misleading for the purposes of CANSPAM. 15 U.S.C. § 7706(a)(1). Omega World Travel, Inc. v. Mummagraphics,

Inc., 469 F. 3d 348 (4th Cir. 2006).

23. Defendants have not falsified or obfuscated transmission paths for the purposes of

Washington’s Commercial Electronic Mail Act, RCW 19.190.020. Benson v. Or.

Processing Serv., 2007 Wash. App. LEXIS 31 (Wash. Ct. App. 2007). 

24. Email accounts that have been relinquished by their users are not “held by a

Washington resident” for the purposes of Washington’s Commercial Electronic

Mail Act, RCW 19.190.020.

25. Plaintiff Gordon does not provide services to others and is thus not an “interactive

computer service” as defined in RCW 19.190.

26. Plaintiff Gordon’s claims under RCW 19.190.20 are dismissed to the extent that

they are based on email messages received by accounts that had been relinquished

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 4 of 7
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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[PROPOSED] ORDER GRANTING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

CASE NO. CV06-0204C - 5

by their users prior to the date and time the messages were received.

27. Washington’s Commercial Electronic Mail Act is preempted to the extent that it

conflicts with the national standard established by CAN-SPAM. Omega World

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

28. RCW 19.190.20 conflicts with CAN-SPAM to the extent that it seeks to impose

liability for false or misleading information in the subject line regardless of

whether the person initiating the message “has actual knowledge, or knowledge

fairly implied on the basis of objective circumstances, that a subject heading of the

message would be likely to mislead a recipient, acting reasonably under the

circumstances, about a material fact regarding the contents or subject matter of the

message.” 

29. RCW 19.190.20 conflicts with CAN-SPAM to the extent that it seeks to impose

liability for individual instances of false or misleading information in the subject

line, rather than a pattern or practice of false or misleading information in the

subject line as determined in a manner consistent with No. 28 above. 

30. Plaintiffs have failed to establish a pattern or practice of false or misleading

subject lines by Defendants.

31. Plaintiffs have failed to offer any evidence that defendant Scott Lynn is directly or

indirectly liable for any of the acts complained of in the Complaint.

32. CAN-SPAM allows standing for providers of Internet access service “adversely

affected” by a violation of certain of its provisions. 15 U.S.C. § 7706(g)(1). Thus,

evidence of actual damages is required to establish standing, even if a plaintiff is

seeking only statutory damages under the Act. Id. 

33. An account that has been “relinquished” by its user is inactive, notwithstanding the

fact that it can still receive and accumulate email messages. 

34. Email messages sent to inactive accounts cannot provide a basis for standing under

CAN-SPAM, because they do not represent services provided to customers. 

35. Defendants are entitled to summary judgment.

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 5 of 7
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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[PROPOSED] ORDER GRANTING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

CASE NO. CV06-0204C - 6

36. Plaintiffs’ CAN-SPAM claims are dismissed with respect to emails sent before

January 1, 2004.

37. All claims against defendant Scott Lynn are dismissed with prejudice.

38. Plaintiff Omni’s CAN-SPAM claims are dismissed with prejudice.

39. Plaintiff Gordon’s CAN-SPAM claims are dismissed with prejudice.

40. Plaintiff Omni’s CEMA claims are dismissed with prejudice.

41. Plaintiff Gordon’s CEMA claims are dismissed with prejudice.

42. Defendants are entitled to their reasonable attorneys’ fees and costs in defending

this lawsuit. Defendants are directed to file an accounting with respect thereto and

Plaintiff may respond within 7 calendar days of that accounting.

It is HEREBY ORDERED. The Clerk of the Court is directed to enter judgment in

favor of Defendants.

DATED this ____ day of ____ 2007.

_____________________________________

UNITED STATES DISTRICT JUDGE

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Presented by:

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 6 of 7
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104 (206) 274-2800

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[PROPOSED] ORDER GRANTING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

CASE NO. CV06-0204C - 7

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By: ________________________________ 

Derek A. Newman, WSBA #26967

Roger M. Townsend, WSBA #25525

NEWMAN & NEWMAN ATTORNEYS AT LAW, LLP

505 Fifth Ave South, Suite 610

Seattle, WA 98104

Phone (206) 274-2800

FAX (206) 274-2801

Attorneys for Defendants Virtumundo, Inc.; 

Adknowledge, Inc.; and, Scott Lynn

Case 2:06-cv-00204-JCC Document 98-2 Filed 01/22/2007 Page 7 of 7