Mail Abuse Prevention System LLC has accused Harris Interactive of orchestrating a complicated exit strategy from its lawsuit against the anti-spam group after Harris realized there was little chance it could win.
MAPS said Internet pollster Harris, Rochester, NY, tried to negotiate an out-of-court settlement in bad faith, and the group called into question Harris' claims that it is now able to reach some 98 percent of its 6.6 million e-mail database.
“It would seem that the only thing which Harris has accomplished was getting one, possibly two, ISPs out of more than a dozen ISP defendants to start accepting their e-mail traffic, something which they could quite possibly have done without the expense and complication of filing a lawsuit,” stated MAPS, Redwood City, CA, in a detailed, three-page account.
However, Harris Interactive's vice president of Internet business, Ben Black, contended that MAPS was the unfair negotiator and insisted the case was a success.
“Understand that without AOL and Microsoft, MAPS has no teeth — they only reach less than 2 percent of our database,” Black said. “No other ISPs matter.”
In late July, Harris sued MAPS and about a dozen Internet service providers, including America Online, Hotmail and Juno Online Services. The lawsuit asked the court to prevent MAPS from placing Harris on the Realtime Blackhole List, a compilation of accused spammers. Within a week, Harris dropped AOL from the suit, claiming it could suddenly reach AOL e-mail addresses.
MAPS charged that Harris took AOL out of the suit “almost immediately” because AOL does not use the RBL, and any blocking of Harris e-mail was done by AOL on its own. Harris initially said it reached an agreement with AOL but then backpedaled, issuing a second statement that there was no settlement but that it believed AOL was now accepting its e-mail.
According to Black, AOL was removed once contact was re-established with all AOL paying customers.
“When we filed the lawsuit, we were not in communication with many of them,” he said. “Once that communication was re-established, they were dropped.”
On Aug. 8, after the court denied Harris' request for a temporary restraining order, Harris amended its complaint to seek compensatory damages from MAPS for the RBL listing, and from a dozen ISPs for choosing to block Harris' e-mails based on MAPS' spam guidelines. One month later, Harris and Hotmail reached an out-of-court agreement whereby Harris would drop Hotmail from the suit and, in turn, its e-mail would no longer be blocked. On Sept. 13, Harris dropped all charges.
Meanwhile, MAPS claims that though Harris reached an agreement with Hotmail, the e-mail service did not stop subscribing to the RBL.
After the Harris/Hotmail agreement, MAPS said Harris' attorneys contacted the anti-spam group about a settlement. They spoke briefly and were unable to reach an agreement. But within hours, Harris issued a press release stating its plans to dismiss the case, according to MAPS.
“Even though they used the word 'settlement,' the tone of the conversation between the attorneys was much more one of, 'If you agree to keep us out of the RBL forever, we will drop our suit,' ” said Anne Mitchell, MAPS director of legal and public affairs.
However, Harris claims MAPS was the one that made costly demands that it knew Harris would never accept.
Paul Vixie, MAPS founder and managing partner, said Harris CEO Gordon Black wanted an exemption from the MAPS RBL rules, which demand verified opt-in registrations, on the basis that the American political process requires open polling among non-self-selecting respondents.
“To Mr. [Gordon] Black, the MAPS standard of fully verified opt-in was invalidative of his polling data. He needs to send unsolicited e-mail in order to be sure he's getting an accurate political sampling,” Vixie said.
Ben Black insisted that Harris does not send unsolicited e-mail and claimed that Gordon Black was never directly involved in the negotiations. He said MAPS' comments about its research methods were “ludicrous” and an attempt to hurt Harris because the pollster fought back against the RBL listing.
In the end, MAPS was ready to file a motion for dismissal that would have argued that Harris had no case and that the U.S. District Court in Rochester had no jurisdiction over the California-based MAPS.
As a result, MAPS contends, Harris believed its best exit strategy would be to dismiss the case and put a “positive spin” on the event. MAPS said it did not receive official notification of the dismissal until more than one week after the Sept. 13 announcement.
The timing “ensured that MAPS could not only not tell the press first about a conclusion to the case (or their motion to dismiss), but which in fact ensured that MAPS could not even respond from a place of knowledge to the Harris release for more than a week, giving Harris several days of unfettered and unchallenged press coverage,” MAPS stated.
Ben Black reiterated that with its mail reaching AOL and Hotmail addresses, the pollster considered the case won. Harris did call MAPS to see if it wanted to work in a “cooperative fashion” but was rebuffed, he said. As for the timing of the dismissal, Black said Harris' lawyers advised the company to drop the suit immediately and that MAPS was informed, along with the other defendants, through the legal process.
“We had to announce it all at once because MAPS was just one of the many players involved,” he added.
Vixie said Harris would remain on the RBL until it implements a fully verified opt-in policy for both new subscribers and retroactively.
