E-commerce outfit sues and is sued in spam spat

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Despite the efforts of many e-mail marketers to establish best practices for the e-mail channel, spam is at an all-time high. E360 Insight, an e-commerce company owned by Dave Linhardt, is involved in a number of spam-related lawsuits including being the plaintiff in a defamation case and the defendant in a violation of CAN-SPAM case.

Mr. Linhardt filed defamation charges against Mark Ferguson, Susan Wilson, Kelly Chien, Tim Skirvin and unknown persons A.K.A. Fudo and A.K.A. Morley Dotes who allegedly referred to e360 as a "spammer" in anti-spam Usenet newsgroups News.admin.net-abuse.email (NANAE) and News.admin.net-abuse.sightings (NANAS).

The defendants also allegedly tried to interfere with e360's relationship with its bandwidth provider, Time Warner. Mr. Linhardt brought the charges of defamation of character and tortuous interference against the defendants in an Illinois federal court on March 7.

"What we're trying to do with this new suit is to get to the truth of what's behind these Internet forums," Mr. Linhardt said. "They incorrectly have been calling us 'spammers' on their site. Also, they have been signing up for our e-mail newsletters and then collecting, like, 20 over a few weeks, then marking them all as spam in the same day, interfering with our relationship with our ISP."

Mr. Ferguson is ready for the legal battle.

"I have already been working with two law firms and a couple ISPs to track down and identify spammers for litigation [and] I have access to a law firm willing to step in and deal with this SLAPP [Strategic Lawsuit Against Public Participation] suit," he said. "We anti-spammers are not anti-commerce."

Mr. Ferguson claims to have collected 3,059 unsolicited e-mails since last November, with 74 coming from e360.

"Now you can tell me if I should be paying to receive 50 unwanted, unasked-for spam [messages] each and every day," he said. "If I complain, I get sued by a spammer like e360Insight."

While Mr. Ferguson has not taken any legal action against Mr. Linhardt yet, software developer William Silverstein has. He filed a complaint in the California Superior Court County of Los Angeles against e360 Insight, its Web site Bargain Depot Enterprises LLC and Mr. Linhardt for the violations of business and professions codes and the violations of the CAN-SPAM Act.

Mr. Silverstein also participates in the anti-spam newsgroups and claims to have received unsolicited e-mail from e360.

"Spamhaus brought him to my attention but once he sued the individuals that's when I decided to take action," Mr. Silverstein said. "He claims that everyone who he sends e-mails to have opted-in, but that's not true. He sent spam to an e-mail address of mine from 2002. I only gave it out once to receive information from an unrelated company and unchecked all of the boxes for receiving e-mail."

Mr. Linhardt declined to comment on the Silverstein case.

Last September e360 won a case against U.K.-based spam-filtering firm Spamhaus, which blacklisted e360. The U.S. District Court for the Northern District of Illinois charged Spamhaus with incorrectly blacklisting e360insight's e-mails to consumers.

Spamhaus was ordered to pay $11.7 million in damages to e360insight. In addition, the court ordered Spamhaus to stop blocking e360 e-mail and to publish an apology stating that Mr. Linhardt and his company are not spammers, according to a copy of the order.

Spamhaus has yet to follow the order.

"We are asking the judge to hold Spamhaus in contempt of court for not complying with the federal mandate," Mr. Linhardt said.

Steve Linford, CEO of Spamhaus, has no plans to comply and has even filed an order to overturn the case.

Mr. Linford would not comment on the Spamhaus case, but he did say that there have been a number of spam complaints from many recipients over a long period of time concerning this particular bulk e-mailer.

"When a normal e-mail marketing firm runs into a spam problem...a responsible firm's response is, 'Sorry, we appear to have had some error, some addresses got on our lists by mistake. We've fixed the problem, our apologies to those who got unwanted e-mails from us,'" he said.

"Spam blacklists are thereby very quickly lifted, angry recipients see an honest marketer who made a genuine mistake and say, 'Ahh, OK' and that's the end of it."

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