Many years back, an "email marketing" company called e360 Insight got upset that the anti-spam advocacy group Spamhaus included e360 on its list of biggest spammers -- a list that many service providers used for spam filtering. So, it sued claiming defamation. What followed was a bit silly, as Spamhaus (based in the UK) initially responded, but then started ignoring the lawsuit, claiming that a US court meant nothing to the UK-based operation. Because of that, a court awarded a default judgment to e360, and simply took its word on how much "damage" being on the list had caused. The end result? An award of $11 million
for simply putting e360 on a list of spammers.
Spamhaus initially ignored the whole thing, again claiming US courts had no jurisdiction over it. However, after e360 sought an injunction to get Spamhaus shut down for failure to pay, Spamhaus got involved. Thankfully, a judge refused to shut down
Spamhaus, and while an appeal didn't buy many of Spamhaus' arguments, it did throw out the $11 million award
, and send it back to the lower court to recalculate the damages.
So, now, four years after the initial $11 million ruling, the court has reduced the damages award to $27,002
. Quite a difference, huh? I would have to guess that e360's legal bills cost a hell of a lot more than $27k. It turns out that there were a bunch of problems for e360, and once it had to actually prove
how much damage being on the list had done, suddenly it wasn't so interested in giving a straight answer or, at times, answering at all. As Venkat Balasubramani notes:
Despite litigating the case vigorously up to this point, when it came to damages, e360 seemed to muster a lot less energy. According to the court, e360 was "slow to provide information requested by Spamhaus . . . [and] missed several [d]eadlines." I'll spare readers a detailed discussion on damages, but the court's take can be summed up as follows:
The unreliability of [e360's] approaches is unmistakably demonstrated by the profound differences in claimed damages profferred at various points during these proceedings. Finally, it strains credulity that a company that made only a fraction of the profits [e360] asks for over the course of its five-year lifespan would have garnered profits in the amounts [e360] set out in [its] testimony or documentary evidence. The profit and loss statement [e360 provided] sets out the company's overall profits at $332,000. . . . .
At the time of default judgment, the damages claimed were $11,715,000. During discovery, Exhibit 5 was proffered reflecting damages of $135,173,577. At trial, proffered Exhibit 5(a) showed damages of $122,271,346. During final argument, the claimed amount was $30,000,000.
Yeah, if you've made a total of $332,000 in profits over the course of five years, perhaps don't claim $11 million in damages just because some company (most likely accurately) put you on a list of spammers.
As for that big question of whether or not the company was involved in spamming. Well, others have certainly thought so. In the past, we've noted that the company had been sued for violating CAN SPAM
, and in another lawsuit e360 filed (against Comcast for filtering its spam), the judge stated pretty clearly that e360 fit the description
of a spammer. On top of that, in the blog post above, Venkat points out that, just in going through this lawsuit, e360 appears to have now put on public record an awful lot of evidence that its activities fall under the definition of what most people would consider spam:
Ironically, through litigating this dispute, e360 caused to be memorialized in a court order, facts about its email practices (and the email marketing industry in general) that I'm guessing it would prefer not be in the public eye. Two facts jumped out at me from the order. First, e360 sent out 6.6 billion (!) emails through the course of its five year existence. Second, there were some familiar faces among the list of its customers: SmartBargains and Optinbig.