Exclusive: Judge Tosses Anti-Spam Suit Against Virtumundo

A federal judge earlier today threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo.

Significantly, the judge cited vacation marketer Omega World Travel’s recent court win over anti-spammer Mark Mumma in making his ruling.

Just as significantly, the judge also ruled the defendants can recover attorney fees.

Gordon—whose sole source of income for 2006 and 2007 was from “settlements and disputes,” according to court documents—sued Virtumundo and sibling company Adknowledge under the federal Can-Spam Act and Washington state law, alleging that between August 21, 2003 and Feb. 15, 2006, he and others received 13,800 misleading commercial e-mails from them at his free e-mail service Gordonworks.com.

He sought more than $2.3 million in statutory damages.

Gordon claimed, among other things, that e-mails were deceptive because their “from” lines contained names such as “Criminal Justice,” “Public Safety” and “Trade In” and addresses such as CriminalJustice@vm-mail.com, PublicSafetyDegrees@vmadmin.com and TradeIn@vm-mail.com in the from lines.

“In each of these emails … no actual sender is identified in the ‘From’ line in any meaningful sense,” said Gordon’s lawers in court papers.

Gordon never claimed to have received unsolicited e-mail from the defendants, Virtumundo’s lawyer, Derek Newman, said in an interview in January. Rather, Gordon opted into the companies’ e-mail programs, he said. Newman declined comment for this article.

Gordon alleged that the e-mails’ headers broke the law because their subject lines contained neither the companies’ names or an employee name.

However, the court ruled the companies’ from lines and e-mail addresses were not misleading because they were not materially false or deceptive.

In rendering his decision, Judge John C. Coughenour of the U.S. District Court for the Western District of Washington at Seattle, cited a recent ruling against anti-spammer Mumma in which the court determined that Omega World Travel’s headers were not materially deceptive as required by the Can-Spam Act and that the act preempted Oklahoma law.

“The Can-Spam legislative history underscores that the Omega court’s holding is correct,” said the decision.

Anti-spammers have voiced concern that the Omega decision would come back to haunt them.

The court also ruled that since Virtumundo could be identified by using the “from” addresses to do a WHOIS lookup, the e-mails were not sufficiently misleading as required under the Can-Spam Act.

“Plaintiffs have not raised any of the issues of material fact that could prove defendants’ e-mails materially ‘false or deceptive,’ as those terms are used in the Can-Spam Act,” the ruling said.

The court also ruled that Gordon’s company, which provides free e-mail addresses mostly for family and friends, is not a “bona fide” Internet service provider as required for someone to bring a private lawsuit under federal anti-spam law.

“Plaintiffs are not the type of entity that Congress intended to possess the limited private right of action it conferred on adversely affected bona fide Internet access service providers,” the decision said.