CircleID

I wouldn’t be astonished if they just gave up.

I would be surprised if they gave up.  The decision doesn't say that E360 is not entitled to monetary damages, and a customer list is cited to have been included in the affidavit that E360 provided.  The appeal decision merely states that there was an insufficient inquiry into the statement of damages, and does not suggest that E360 is not entitled to anything. 

The decision is clear that the issue of liability is not going to be re-opened.  At this point, it's just a question of how much.

Spamhaus' strategy in the lower court proceeding is unfathomable, though.

As I said, the appeals court reminded the trial court that E360 has to documenthis damages, which he hasn't. Having read the affidavit (it's not hard to find, you know, you don't have to speculate), the largest chunk of damages, $9.2M, was for four companies that he claimed were about to do business with him.  I happen to know the management at one of those companies, the chances they would have hired him were somewhere between zero and forget it, and there's no reason to think the other ones were any more real.

I agree that Spamhaus' strategy was nuts. My best guess is that a lawyer wrongly told them that if they withdrew, E360 would have to serve their default judgment on them in England and they could refuse since US defaults aren't enforcible in English courts.

As I said, the appeals court reminded the trial court that E360 has to documenthis damages

Right.  But there is no drawback to trying.  Given the possibility of getting "something" with no downside, opting for "something" in those circumstances would be Mr. Spock's choice.  The district court still has a lot of discretion.  If you were a judge, and you had an attorney withdraw from the case in your courtroom, only to later have the defendant take your judgment up on appeal, you might not be highly impressed with this thing come back to your docket.

I'm not rooting for the plaintiff here by any means, but the recent Bodog.com shenanigans suggest that ignoring a US action when you just might have US contacts is not the best approach.

My best guess is that a lawyer wrongly told them that if they withdrew,E360 would have to serve their default judgment on them in England and they could refuse since US defaults aren’t enforcible in English courts.

That would have been a better strategy from the outset - simply not to appear and challenge enforcement in the UK.  But once they made an appearance in the case to remove it to federal court, instead of simply and solely objecting to jurisdiction, or even doing nothing, they severely compromised their ability to challenge enforcement.  They must have been thinking something, but I am ignorant as to what it might have been.

After listening to the oral arguments, I thought the Court of Appeals might have been persuaded to lift the default judgment, providing Spamhaus paid all of the Plaintiffs legal fees and expenses to date.

However, counsel for Plaintiffs strenuously opposed this approach, arguing forcefully in favor of keeping the default judgment in place.

It is fortunate that counsel did not follow the Court. At the same time, he was not able to persuade the Court that the default damage award and injunction should stand.

This resulted in a ruling which was the best that Spamhaus could achieve, without having to pay any money to the Plaintiff, as each side was ordered to bear its own costs on the Appeal.

(Cough … it is interesting to note that one of the lost contracts used by e360 to support the initial damage award involved doing affiliate mailings for eMarketmakers, part of what was then called Vendaregroup, a ROKSO listed entity.)

One point of clarification. You write:

As I read the decision, the only injunction that E360 is entitled to at this point is one forbidding Spamhaus from saying that E360 was spamming in September 2006. (Well, OK.) If they have been spamming since then, which I happen to know they have since they’ve sent quite a lot of it to users on my network, Spamhaus is free to re-list them, and any plausible injunction forbidding that would fail as prior restraint.

Ah … we need to carefully read what the Appeals Court wrote:

In this case, the facts upon which the judgment is supported demonstrate only that at the time that Spamhaus initially posted that e360 was a “spammer”—the posting upon which the cause of action was based—the posting was false. That the label was
false when originally posted does not mean that, applying Spamhaus’ generally applicable criteria for determining what a spammer is, e360 ought to be given a free pass for all time.

Rather, it simply means that, whatever the initial factual basis Spamhaus had used to list e360 on the ROKSO, Spamhaus may not rely on that basis in the future. If Spamhaus were to discover additional evidence that e360 meets the ROKSO criteria and subsequently were to place e360 on the ROKSO on the basis of that new evidence, Spamhaus would be entitled to a separate judicial determination that this new label is in fact false and that it is liable for defamation.

The key statement is that “whatever the initial factual basis Spamhaus has used to list e360 on the ROKSO, Spamhaus may not rely on that basis in the future. “

So, Spamhaus has to have new factual evidence supporting that e360 is now “under the control of, or providing service to a known professional spam operation run by Brian Haberstroh / Atriks” or some other ROKSO listed entity, to justify a listing in ROKSO and Spamhaus “labeling” e360 as a spammer.

The ruling does not deal with Spamhaus simply listing e360 on the SBL. 

Following the Court’s logic, if Spamhaus has new evidence, consistent with its criteria, that justifies a new SBL listing, without any editorial comment or reference to the earlier ROKSO listings, “Spamhaus would be entitled to a separate judicial determination that this new listing is in fact false and that it is liable for defamation.”

That being said, the whole thing may be "moot." The website for e360 has been off the air ever since the Court of Appeal came down with its judgment.