The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Attorney fee awarded to prevailing defendant justified in CAN-SPAM case, under “evenhanded” approach.

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The "evenhanded" approach, which treats prevailing plaintiffs and prevailing defendants equally, should be used in determining whether the prevailing defendant in a CAN-SPAM Act case is entitled to an award of attorney fees. Gordon v. Virtumundo, Inc., No. 06-0204, 2007 U.S. Dist. LEXIS 55941 (W.D. Wash. Aug. 1, 2007). The court granted the defendant’s motion for attorney fees, concluding that the more stringent test applied in civil rights cases, which is more favorable to plaintiffs, should not be applied in CAN-SPAM cases. The court examined the purpose of the CAN-SPAM Act, concluding among other things that Congress’s "twin purposes of protecting consumers and imposing a regulatory structure on businesses with which they reasonably can comply lend themselves well" to a test that treats plaintiffs and defendants equally in the determination of attorney fee awards. In determining that an award to the prevailing defendant was appropriate in this case, the court referenced the plaintiffs’ institution of numerous similar CAN-SPAM action in the same district, commenting that "it is obvious that Plaintiffs are testing their luck at making their ‘spam business’ extraordinarily lucrative by seeking statutory damages through a strategy of spam collection and serial litigation."

Author: ABA Antitrust

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