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

.

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News and announcements: March 1, 2010

Some news stories and links today.
Spamhaus has announced their new domain block list (DBL). The DBL is a list of domains that have been found in spam.

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Mickey's take on e360 settlement

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

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Spamhaus files for dismissal of e360 case

Spamhaus filed a motion today asking the judge to dismiss the e360 v. Spamhaus case for contempt. Mickey, as usual, has the docs up.
I have not posted much on the case recently, as there was only legal wrangling about discovery going on. The biggest problem being that e360 has dragged their feet, stalled and avoided discovery for the last 8 months. They have missed deadlines, turned over incomplete documents and ignored depositions. Since I last wrote about this case, discovery has been extended multiple times, the judge has compelled e360 to turn over docs and information and he sanctioned e360 for their failures to comply.
From my perspective, Spamhaus’ lawyers have been setting the stage for this motion for the last 4 – 5 months. Their interactions with e360’s lawyers, their motions to compel and their motion for sanctions have all formed a narrative of how e360 is stonewalling discovery.
This particular motion is only about 8 pages long, but references a 125 page exhibit. The very large exhibit is mostly documents that have been published before in the “Motion for Various relief due to Persistent Discovery Defaults” filed in July.
In the July motion, Spamhaus’ lawyers detail their repeated efforts to get discovery from e360, and the utter lack of cooperation. One of my favorite bits is that e360 responded (weeks late) to some of the initial interrogatories with (paraphrased), “It is too hard to write all this down, but we will tell you about it in the depositions.” My understanding of the law is that this is, in and of itself, a bit of a no-no. What really puts the icing on the cake, though, is that e360 then skipped 2 properly noticed depositions. They just did not appear, thus making their answers to the interrogatories utterly meaningless.
Spamhaus requested that the Judge impose sanctions on e360 for failing to appear at 2 depositions, not complying with the judge’s previous orders and generally being unable to actually produce any documentation that is complete or on time. Even better, when e360 did manage to produce a thumb drive it contained multiple email conversations between Mr. Linhardt and his lead counsel. This little oops happened because no one at the law firm bothered to actually examine any of the files before handing over the thumb drive. In fact, they only became aware of their error when opposing counsel notified them of the files. When e360 asked for the information back, Spamhaus’ lawyers refused pointing out that they handed over all the information willingly and that their failure to actually examine the files does not constitute an inadvertent disclosure.
The judge did sanction e360, although not with the severity that Spamhaus’ lawyers requested. He also ordered full discovery and documents turned over by August 15th. Based on my reading of the transcript (exhibit 4) the Judge sounds like he is tired of having to tell the e360 lawyers to do their jobs. The judge lectured e360 on their failure to get thing resovled.

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