Order GRANTING Azoogle's Motion for Summary Judgment
(Unsealed April 29, 2008)
Azoogle's Motion for Summary Judgment
ASIS's Opposition to the Motion for Summary Judgment
Azoogle's Reply to Brief in Support of its Motion for Summary Judgment
U.S. Magistrate Judge Joseph Spero has unsealed his order granting Epic Advertising, Inc.’s (formerly AzoogleAds.com, Inc.) motion for summary judgment in a CAN-SPAM lawsuit brought by serial plaintiff ASIS Internet Services, Inc.
The order grants Epic Advertising’s motion as to ASIS’s CAN-SPAM claim on two separate grounds: 1) that ASIS lacked standing due to its failure to prove that it suffered "adverse effects" as a result of the alleged emails; and 2) that ASIS failed to demonstrate that Epic Advertising "procured" or otherwise had the requisite knowledge regarding the alleged emails. Separately, Judge Spero also granted Epic Advertising’s summary judgment motion as to ASIS's California Business and Professions Code Section 17529.5 claim, finding that Epic Advertising did not "advertise" in the alleged emails.
"This is yet another in a growing line of cases in which courts are rejecting the use of CAN-SPAM and similar state laws by plaintiffs' attorneys interested in turning a quick buck," commented a partner at Kronenberger Rosenfeld LLP, the lead law firm for Epic Advertising. "Courts understand that CAN-SPAM doesn't outlaw email marketing. It simply sets parameters within which email marketing must be conducted. Responsible companies like Epic Advertising understand and abide by those parameters, and shouldn't be held hostage by profiteers seeking to exploit what were well-intentioned statutes."
Epic Advertising was the only of almost 20 defendants to pursue the litigation to a judgment. One defendant failed to appear at all and was eventually dismissed by ASIS. The remaining defendants settled with ASIS between late 2005, when the lawsuit was filed, and the spring of 2007. ASIS and counsel the Singleton Law Group have filed seven other CAN-SPAM cases, making ASIS one of the nation's most prolific spam plaintiffs.
During the litigation, evidence came to light that ASIS is running what amounts to a CAN-SPAM “litigation mill.” As part of its litigation effort, ASIS disclosed to Singleton and others millions of emails intended for ASIS’s customers and former customers, as well as for third parties. Epic Advertising argued that ASIS’s tactics violated the federal Electronic Communications Privacy Act.
Judge Spero has scheduled a May 9 conference to discuss, among other things, a briefing schedule for Epic Advertising’s expected requests for costs and attorneys' fees.
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