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ComplaintThis is the complaint in this case. It alleges:
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 NavigationBrosnan v. Alki Mortgage, et al. [DISMISSED w/leave to amend]User loginRecent comments
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![[file]](http://spamsuite.com/icons//pdf.gif "Download ApexComplaint.pdf"){kind=icon}
Brosnan v. Alki Mortgage
Is this and "individual action" under CANSPAM?
Yes & No
It is an individual action under CAN-SPAM, but only because Mr. Brosnan is running his own ISP.
He may run into a Gordon problem, though. I can't find a website for "Apex ISP Services". That SHOULD NOT mean anything, but if this Judge adopts the standard in Gordon then he might have a very difficult time proving his damages.
Gordon Problem?
I'm the John Brosnan suing Alki Mortgage.
What's the Gordon problem?
John
Gordon Problem
The Court's decision in Gordon v. Virtumundo, et al., sets aside a lot of discussion space to looking at standing (or the ability) to bring suit.
It concludes that in order to bring a suit under CAN-SPAM a provider has to be "significantly affected" in addition to qualifying as an "Internet Access Provider." The bar set there is sufficiently high that it will mean that Plaintiffs will need to actually enumerate the amount that the Defendant's spam has cost them in order to survive a Motion for Summary Judgment.
Re: Gordon Problem [Judgment for the Defendants] & why.
Gordon, et al. v. Virtumundo, et al.
Orders on Multiple Motions
(Judgment for Defendants):
And now this case ends.
Gordon was in this to make money and didn't even own his equipment (a dedicated server owned by GoDaddy). The Judge really didn't like that. The result of that displeasure and Gordon's laziness were some statements that basically say you can't be a small provider and take advantage of CAN-SPAM's private right of action. I expect this to end up being a pretty persuasive argument.
There is also some analysis of pre-emption and a finding that except in cases of fraud, the Washington Commercial Electronic Mail Act is pre-empted by CAN-SPAM.
Under CAN-SPAM, damages must be "significant" before anyone can bring a lawsuit. No, he didn't quantify what "significant" means.
Virtumundo has been laboring under the impression that providers of free email providers got no CAN-SPAM protection. Thankfully, the Judge disabused them of that notion by pointing to Congressional discussions involving the impact of spam on free email providers.
How can 1, yes 1 email be
How can 1, yes 1 email be considered spam. Especially when this was a solicted email. Unfortunately, many people try to take advantage of the system, which ruins it for the real culprits. Mr Brosnan, or whoever he is, needs to put his spare time to better use and quit wasting the courts time with frivolous lawsuits.
Unfortunately, your
Unfortunately, your attorneys are not filing their documents electronically, so it's difficult to get a copy of them. That leaves us with one side of the story -- one which says that there are 1,067 emails involved, not just one.
1 email
This was a lead that was purchased from netleads.com and when we purchased the lead we called the number and then sent out 1 email to the email address that had been provided in the lead. When we did Mr. Bosnan called and claimed this is what he did for a living and that if we choice to pay him $3500 he would drop the case or else he was going to sue us of 100,000. We informed him that we were only responding to the inquiry that he had made with netleads and he said, "Perhaps you set up a site and sent out email blasts and then when everyone responds you sell them to netleads and then perhaps you bought them back so as to use netleads as a shelter for your emails blast." He when on to make further references to the fact that he could not sue lead providers. I offered to allow him to log into the web sit and see his name and also the fact that we had paid for it. After we requested the lead to be returned and the credit had been given we offer to and provided him with the credit from the company. He does not care that these blasts did not come from us, he is just looking for someone to squeeze. We do not have an attorney yet but the attorney for the Gordon case is a friend of mine and tells me for a lot of money up front he will counter sue Mr. Bosnan for the wasted time and cost but for now we will go to court and save the guns for later.
Derek Newman
Derek is representing The Bradford Exchange and put forth the usual challange to my standing [me not being an Interactive Service Provider] and that I have not suffered any damages.
I am not Jim Gordon and the spammers The Bradford Group hired are not Virtumundo and I have spam from them and others and more importantly I have had to pay extra simply to deal with my email as a direct result of the group of spammers the Bradford Group hired and unless there is a yacht parked eighty blocks of the coast of Florida as well as some other choice addresses the spammers are just not going to identify themselves.
Be careful which lawyer you hire because often things are not as they seem. If Brosnan has not sued you then how can "your friend" counter sue him?
He can't so either you are full of shit or whomever told you that. People placing their faith in a single source hoping to be free of their responsibility instead of taking responsibility for their actions.
In the end the damages will be paid and Derek will also get paid and I suspect these funds will be coming from a single source and I suspect that source will not be me.
Follow-up on my own post
Seems the suit has been filed :-)
Seems that under California law and the can spam act the spam is worth $1,500.00 each in liquidated damages or for a total of 1.6 Million in liquidated damages. I read the complaint and from what I read the spam violates California law as well and the B&P code was not preempted by the federal law either.
Feel good they are not seeking the legal limit in damages. I do hope they amend their complaint to do so.
With your comment about Newman--how do you suppose he will act as your attorney for a California case or do you suppose you will file a new suit? He can act ad hoc but no more; as far as I know Derek is not able to practice in California and he is quite busy at the moment.
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