Still futile

As I mentioned last Thursday, both Yahoo and Microsoft filed oppositions to Holomaxx’s opposition to dismissal. Let me ‘splain… no, there is too much, let me sum up.
Holomaxx sued both Microsoft and Yahoo to force MS and Yahoo to stop blocking mail from Holomaxx.
The judge dismissed the initial complaint with leave to amend.
Holomaxx filed a first amended complaint.
Microsoft and Yahoo both argued that the first amendment complaint should be dismissed because it wasn’t fixed.
Holomaxx filed a motion in opposition to the motion to dismiss. Their arguments were reasonably simple.

  1. MAAWG is a standards setting body and Yahoo and Microsoft are violating the standards set by MAAWG.
  2. We assert that both Yahoo and Microsoft are screening our emails before our emails hit their system thus it qualifies as wiretapping.
  3. Our emails are confidential.
  4. We compete with Microsoft and  Yahoo as advertising agencies, thus everything the ISPs are doing is anti-competitive behaviour.

Last week I discovered that both Microsoft and Yahoo filed another memo of law in support of its motion to dismiss the first amended complaint. Their arguments, too, were relatively simple.

  1. The MAAWG document in question is not a standards document, it is a summary of current practices.
  2. Holomaxx can’t explain how they think the “wiretapping” is happening and they should not be allowed discovery in order to create this argument.
  3. Neither ISP is actually a competitor of Holomaxx.

I think Yahoo’s lawyers, again, summed it up.

Plaintiff has had and squandered the opportunity to meaningfully amend its pleadings to state a plausible claim based on well pleaded facts and viable legal theories. Further amendment would be futile and should be denied.

The hearing is currently scheduled for 9am on Friday in San Jose.

Whatcounts acquires Blue Sky Factory
The perfect email

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Holomaxx status

Just for completeness sake, Holomaxx did also file an  amended complaint against Microsoft. Same sloppy legal work, they left in all the stuff about Return Path even though Return Path has been dropped from the suit. They point to a MAAWG document as a objective industry standard when the MAAWG document was merely a record of a round table discussion, not actually a standards document. I didn’t read it as closely as I did the Yahoo complaint, as it’s just cut and paste with some (badly done) word replacement.
So what’s the status of both cases?
The Yahoo case is going to arbitration sometime in July. Yahoo also has until May 20 to respond to the 1st amended complaint.
The Microsoft case is not going to arbitration, but they also have a response deadline of May 20.
I’m not a legal expert, but I don’t think that what Holomaxx has written fixes the deficits that the judge pointed out in his dismissal. We’ll see what the Y! and MSFT responses say a month from today.

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Holomaxx dismisses part of lawsuit

Ken announced yesterday that Holomaxx dropped their suits against Ironport and ReturnPath. Suits against Yahoo and Hotmail are still active.
In the Yahoo case, there is a case management meeting on January 14th.
In the Microsoft case, a response the complaint is due by December 17th.
I’m not quite sure what happened to prompt this change, but I think it makes it even more unlikely that the case will be successful. The courts have repeatedly ruled in favor of ISPs in these kinds of cases.
EDIT: I’d link to Ken’s article, but I appear to have closed that tab and I can’t find it on his website. I’ll add it as soon as I do.
EDIT: Ken’s announcement

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