No monkey business

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Here's a case that should interest e-mail marketers and service providers. On Oct. 30, bulk e-mail service provider Global Resources Systems and several co-defendants - Brand Interactive, Shadowshopper.com, E-Management Group and VC E-Commerce Solutions - defeated plaintiff Infinite Monkeys & Co. LLC in a California state court lawsuit brought by its managing member, Ronal Guilmette, and its attorney, Timothy Walton. Venable, a Washington law firm, represented the defendants.

Infinite Monkeys claimed that Global Resources and its e-mail marketer clients violated California law prohibiting the unsolicited dispatch of commercial e-mail. As many know, California's laws are tougher than the CAN-SPAM Act. Despite that, the defendants prevailed on summary judgment. Judge Neil A. Cabrinha of the Superior Court of California, County of Santa Clara, ruled for the defendants on all counts.

Judge Cabrinha specifically rejected Infinite Monkeys' business model of buying Web domain names and redirecting e-mails sent to those addresses to itself so that it could file lawsuits for the alleged receipt of unsolicited commercial e-mail. The judge ruled that Infinite Monkeys was not a "recipient" under the California statute because it was "not the addressees of the subject e-mails. They were not intended for plaintiff."

Also, Judge Cabrinha denied Infinite Monkeys' claim for trespass to chattel. He said Infinite Monkeys' ability to do business was not impeded because the company's servers were set up for the sole purpose of capturing allegedly unsolicited commercial e-mail. Equally important, the judge rejected Infinite Monkeys' claims for unlawful business and advertising practices under California law. He found that the plaintiff suffered no actual damages.

Infinite Monkeys has the right to appeal.

This is one of the few cases related to alleged unsolicited e-mail that has gone through the litigation process, from discovery to depositions and interrogatories. The usual practice is to settle because of the time and expense of defending lawsuits regardless of merit. So Case No. 1-05-CV-039918 in the Superior Court of California, County of Santa Clara, is worth studying.

We invite Infinite Monkeys to give its side of the story.

Meanwhile, here's Lisa Jose Fales, the partner at Venable who represented Global Resources and the four co-defendants: "It's important to understand the way these plaintiffs do business. In this case, Infinite Monkeys went and they bought up domain names and then they take e-mails that are legitimately sent to that domain name that they purchased and they redirect the e-mail to Infinite Monkeys' server. The equivalent is that I send you a letter to your house, you move, Infinite Monkeys comes and buys your house and then they take the letter I sent out of your mailbox and claim that it was wrongfully sent to them because they bought the house."

The implications of this legal dustup are clear.

"What this case demonstrates is that these defendants do not have to, and should not be, essentially paying off these plaintiffs to just go away because it's the presumed least expensive way to deal with these baseless lawsuits," Ms. Fales said. "Instead, what this case said is that these marketers have a basis to fight these plaintiffs because the lawsuits itself are baseless, as Judge Cabrinha's order underscores."

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