Spamhaus motion to reconsider

A few weeks ago, Spamhaus filed a motion to have the judge reconsider his recent $27,002 award to e360. Their brief hangs on three arguments.

  1. The Court Should Vacate The $27,000 Award Because The Court Previously Ruled That Plaintiffs Were Barred From Relying On The Putative Lost Revenue Data Upon Which It Was Based.
  2. The Court Should Vacate The $27,000 Award Because It Is Improperly Based On Lost Revenue, Not Lost Profit.
  3. The Court Should Vacate The $27,000 Award Because There Is No Evidence That The Putative Lost Revenue Belonged Exclusively To Plaintiff e360.

As Spamhaus says in their opening paragraph, they know motions to reconsider are “rarely fruitful or helpful” but go on to say:

in this particular case, as Your Honor knows, Plaintiffs’ damages calculations and requests were a quickly moving target. Indeed, although evidence regarding e360 Insight LLC’s monthly revenue from its relationship with SmartBargains, Vendare Media and OptinBig (the “Putative Lost Revenue”) was offered at trial, Plaintiffs did not ask that an award of damages be based on the methodology the Court used – one month of those putative revenues. As a consequence, Spamhaus did not get an opportunity to point out the specific reasons why the problems we raised generally with Plaintiffs’ various damages methodologies barred an award based on the Putative Lost Revenue. Given that history, while mindful of the disfavor in which motions to reconsider are held, we wanted to directly present the infirmities in the $27,000 award to Your Honor before raising them in the Court of Appeals in the hopes of ultimately conserving judicial resources.1
1 Spamhaus respectfully believes that the $27,000 award is erroneous for additional reasons that we have elected not to present in this motion because they have already been adequately presented to Your Honor. By making this motion, Spamhaus does not waive, and expressly reserves, any and all other grounds for appeal of the Court’s judgment.

Just from that, it’s clear Spamhaus is prepared to take this to the Court of Appeals (again) if the judge doesn’t reconsider. In my lay reading of the law, and the memo in support of motion to alter judgement I don’t think Spamhaus is out of line in asking for the judge to reconsider. I expect that if the judge doesn’t reconsider, then we’ll see an even more aggressive filing taking it up to the Court of Appeals.
I think that John Levine said it best, though, in his recent post about the issue

I’m sure that Judge Korcoras is very, very, sorry he ever heard of Spamhaus or E360

.

Check your assumptions
Freemail opens

Related Posts

Mickey's take on e360 settlement

Mickey has the full docs of the settlement, and talks about the implications of the confession of judgment.

Read More

Email news

ReturnPath sold its email change of address division to Fresh Address and spun off its email marketing division. Full announcement at the RP Blog and a copy of the press release at EmailKarma.
e360 petitioned the court earlier this week to compel Spamhaus to expand on their answers to e360’s interrogatories. Today the court denied the motion. Text of the motion at Mickey’s place.
There has been a noticeable increase in registrar phishing over the last week. This may be related to ICANN de-accrediting ESTHosts, a registrar well known in the anti-spam community for registering domains used in phising and spam. UPDATE from ICANN.

Read More

Spam lawsuits: new and old

There’s been a bit of court activity related to spam that others have written about and I feel need a mention. I’ve not yet read the papers fully, but hope to get a chance to fully digest them over the weekend.
First is e360 v. Spamhaus. This is the case that actually prompted me to start this blog and my first blog post analyzed the 7th circuit court ruling sending the case back the lower court to determine actual damages. The lower court ruled this week, lowering the judgment to $27,002 against Spamhaus. The judge ruled that there was actual tortuous interference on the part of Spamhaus. In my naive reading of the law, this strikes me as not only an incorrect ruling, but one that ignores previous court decisions affirming that blocklists are protected under Section 230. Venkat seems to agree with me.

Read More