E360’s Linhardt Vows to Appeal Comcast Ruling

E360 Insight’s CEO Dave Linhardt said he will appeal the decision rendered against him last week in his lawsuit against Comcast.

“We respectfully disagree with the court's ruling,” Linhardt wrote in a lengthy statement published online. “We are appealing the decision and more information will follow in the appeal.”

Linhardt sued Comcast—America’s No. 2 Internet service provider with 13.2 million subscribers—in January, accusing it of unfairly blocking messages that he said were permission-based.

The complaint claimed that because e360’s e-mails comply with the Can-Spam Act, Comcast’s actions violated Computer Fraud and Abuse Act, violated the first amendment of the Constitution, wrongly interfered with e360’s business and constituted unfair and deceptive business practices.

However, Judge James B. Zagel in U.S. District Court in Northern Illinois ruled that Comcast is not liable for mistakenly blocking even permission-based e-mail when it’s part of a good-faith effort to protect its subscribers from spam and tossed Linhardt’s lawsuit against the cable broadband provider.

According to Zagel’s ruling, compliance with Can Spam “does not evict the right of the provider to make its own good faith judgment to block mailings.”

Linhardt swore in his statement that recipients want his messages.

“What is missing in this ongoing debate is the simple fact that e360’s customers want to receive email from us,” he wrote. “When they do, our revenue goes through the roof. In the instances when our messages are unimpeded, gross revenue and productivity per message increase dramatically. This simply would not happen if our customers did not appreciate the value of our marketing messages. Given this empirical evidence, it is difficult to conclude our email messages are unwanted. The data suggest exactly the opposite is true.”

Meanwhile, there is still the matter of Comcast’s countersuit. The broadband cable provider countersued e360 in March, accusing Linhardt and various business entities associated with him of sending spam to Comcast subscribers, using misleading or false headers and subject lines, selling counterfeit goods, falsely advertising the goods as free, and fabricating opt-in records.

It is unclear if Comcast plans to drop its countersuit as a result of Judge Zagel’s ruling. Multiple calls to the ISP’s press-relations department have not been returned.

The Comcast battle is one of a series of legal fights Linhardt is engaged in.

He is suing members of the Nanae online anti-spam discussion group. He is also being sued in separate actions by a lawyer in Ohio and an anti-spammer in California.

Linhardt has also been in a long legal battle with anti-spam outfit Spamhaus. He won an $11.7 million default judgment against Spamhaues in 2006 when representatives of the anti-spam blacklister failed to show up to defend themselves in court.

Spamhaus appealed the judgment. A federal appeals court vacated it last September, and sent it back to district court to recalculate damages.