Oral arguments in US appellate courts tend to be staid affairs, with judges asking probing questions and attorneys politely sparring over the finer points of legal doctrine. So Joseph Kish, attorney for alleged serial spamming firm e360, must have known he was in trouble when Judge Richard A. Posner interrupted him seconds into his opening statement to berate both Kish and his client.
"I have never seen such an incompetent presentation of a damages case," Posner said. "It's not only incompetent, it's grotesque. You've got damages jumping around from $11 million to $130 million to $122 million to $33 million. In fact, the damages are probably zero."
Kish was appearing before the United States Court of Appeals for the Seventh Circuit to explain why his client was entitled to $27,000 from Spamhaus, a British anti-spam nonprofit. We first covered the organizations' quarrel five years ago when the owner of e360 went to court after being put on a Spamhaus anti-spam blacklist. e360 claims it has always "complied with federal and state requirements and standards pertaining to the sending of commercial e-mail" and says that all marketing is done on an "opt in" basis. The company sued Spamhaus for damages cause by being on the blacklist.
Spamhaus never recognized the jurisdiction of an Illinois federal court and didn't bother to contest the claim in court. The judge responded by entering an $11.7 million default judgement against Spamhaus.
Spamhaus eventually changed its mind about ignoring the case and accepted an offer of free representation from a Chicago firm. The case was appealed, and the Seventh Circuit ruled that e360 needed to present evidence to support its damages figure. A three-day bench trial occurred in which the plaintiff repeatedly changed his numbers, at one point asking for $130 million. The judge in that case rejected all of the plaintiff's figures and wound up awarding $27,000.
Spamhaus, a British organization, has no more intention of pay $27,000 than it did of paying $11.7 million. But with the help of its pro bono American lawyers, it appealed the decision anyway. The Seventh Circuit held oral arguments in the case on Wednesday.
None of the judges on the appeals court panel seems sympathetic to e360's argument, but Judge Posner did most of the talking. He spent fully two-thirds of Kish's 15-minute presentation demanding that Kish explain his client's methodology and lecturing him on its inadequacy.
"This is just totally irresponsible litigation," he said. "You can't just come into a court with a fly-by-night, nothing company and say 'I've lost $130 million.'"
When Kish noted that the damages request was later reduced to $30 million, Posner said "That's also preposterous," noting that it's hard to believe a company that never made more than $140,000 in a year could suffer damages that large. "How can a court be bothered with such pie-in-the-sky damages estimates without expert evidence?" he asked.
Posner's colleague used more measured tones, but he seemed to draw the same conclusion, stating that e360's rapidly changing story "destroys the credibility of all the numbers."
Spamhaus's attorney had a relatively easy appearance before the court. The judges expressed surprise that a defendant would even bother to appeal a judgment as small as $27,000. The attorney highlighted the many procedural gaffes in e360's case and urged the appeals court to reduce his client's damages to a symbolic $1.
e360 went out of business in 2007 "as a direct result of Spamhaus actions," according to a court filing (PDF).
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