Morrison & Foerster LLP, California's largest law firm, has filed a lawsuit against Etracks.com Inc. accusing the e-mail marketer of using the law firm's servers to spam its lawyers.
The law firm alleges that Etracks.com sent Morrison & Foerster lawyers in California more than 6,500 spam messages for everything from adult services to psychic readings. The firm is suing Etracks.com under California's anti-spam law, which prohibits marketers from sending e-mail to anyone who has not opted in to receive messages or someone they don't have a prior relationship with.
Morrison & Foerster said it did not know when the spamming began but noticed the problem last summer.
“Since September 16, 2001, Morrison & Foerster's California users have received at least 6,500 unsolicited e-mail advertisements from Etracks,” the lawsuit states. “Etracks has continued to send unsolicited e-mail advertisements to Morrison & Foerster after receiving notice of Morrison & Foerster's policy prohibiting such e-mail.”
The law firm seeks damages of more than $325,000, about $50 per message. Morrison & Foerster said it provides e-mail and intranet services to more than 2,000 employees in California.
Etracks.com did not return phone calls or e-mail seeking comment.
The law firm also accuses Etracks.com of failing to clearly designate the content of the messages in their subject lines.
“Etracks' unsolicited advertisement messages have not included a subject line containing the legally required characters “ADV:”, or “ADV:ADLT” for e-mail messages of an adult nature, nor have Etracks' advertisements sent to Morrison & Foerster included in the first line of the e-mail message a toll-free telephone number or a valid sender-operated return e-mail address that the recipient could call or e-mail to notify the sender not to send further unsolicited e-mail advertisements,” the lawsuit said.
Morrison & Foerster said it notified Etracks.com of its policy prohibiting spam on Aug. 16 via a removal e-mail address posted on Etracks.com's Web site.
David Sorkin, an associate professor of law at The John Marshall Law School, Chicago, said the case is unusual, but not unprecedented. This is not the first spam lawsuit filed by an employer on behalf of its employees, he said.
“California's spam law does give employers the right to opt out on behalf of their employees,” he said. “Many of the provisions in various laws that are applicable to ISPs would also apply to employers, such as the ability to post a no-spam policy.”
However, Sorkin said that it might be difficult for Morrison & Foerster to prove that some of its employees had no prior relationship with Etracks.com, particularly if Etracks.com used an e-mail append service to acquire its names.
“I suppose it might be difficult for an employer to prove that none of its employees have an existing relationship with a spammer, but that's just an evidentiary issue,” he said. “An additional problem arises if the spammer claims to have an existing offline relationship with the recipients that it has leveraged by using an e-mail append service.”
Sorkin said this is one of the problems with e-mail append services. They make it difficult for recipients to know whether they opted in to third-party marketing.
“This is another argument against such services,” he said.