Fees Were Appropriate By Analogy to Similar Fee Shifting Provision of the Copyright Act.
In 2003, Congress passed CAN-SPAM Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act. Now, a United States District Magistrate Judge has awarded defendant attorney’s fees of over $800,000 under a fee shifting/sanctions provision of the CAN-SPAM Act.
U.S. Magistrate Judge Joseph C. Spero of the Northern District of California, on May 19, 2010, ordered a plaintiff Internet marketing company named ASIS Internet Services to pay over $800,000 in fees to defendant online marketer Azoogle after finding ASIS had acted unreasonably when it sued Azoogle over some unsolicited emails that plaintiff received during a three-week period in 2005.
Earlier, the Ninth Circuit affirmed a summary judgment ruling against ASIS in the case, agreeing that ASIS could not show the requisite standing and also had not produced evidence that Azoogle “procured” the emails.
In attempting to fend off the fee recovery, ASIS argued that Azoogle, as a prevailing defendant, should not recover anything based on CAN-SPAM Act’s remedial purpose. However, Magistrate Judge Spero disagreed, finding more persuasive an analogy to a similar fee shifting provision in the Copyright Act that allowed imposition of fees as sanctions when a plaintiff acts unreasonably.
The magistrate judge did reject awarding another $100,000 in expert fees because the CAN-SPAM Act does not provide for such an award.
The case is ASIS Internet Services v. Optin Global, Inc., Case No. 05-05124 (N.D. Cal.).
