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Spamhaus Motion to Reconsider

Laura Atkins

A few weeks ago, Spamhaus filed a motion to have the judge reconsider his recent $27,002 award to e360. Their brief hangs on three arguments.

1. The Court Should Vacate The $27,000 Award Because The Court Previously Ruled That Plaintiffs Were Barred From Relying On The Putative Lost Revenue Data Upon Which It Was Based.

2. The Court Should Vacate The $27,000 Award Because It Is Improperly Based On Lost Revenue, Not Lost Profit.

3. The Court Should Vacate The $27,000 Award Because There Is No Evidence That The Putative Lost Revenue Belonged Exclusively To Plaintiff e360.

As Spamhaus says in their opening paragraph, they know motions to reconsider are "rarely fruitful or helpful" but go on to say:

in this particular case, as Your Honor knows, Plaintiffs' damages calculations and requests were a quickly moving target. Indeed, although evidence regarding e360 Insight LLC's monthly revenue from its relationship with SmartBargains, Vendare Media and OptinBig (the "Putative Lost Revenue") was offered at trial, Plaintiffs did not ask that an award of damages be based on the methodology the Court used — one month of those putative revenues. As a consequence, Spamhaus did not get an opportunity to point out the specific reasons why the problems we raised generally with Plaintiffs' various damages methodologies barred an award based on the Putative Lost Revenue. Given that history, while mindful of the disfavor in which motions to reconsider are held, we wanted to directly present the infirmities in the $27,000 award to Your Honor before raising them in the Court of Appeals in the hopes of ultimately conserving judicial resources.

Spamhaus respectfully believes that the $27,000 award is erroneous for additional reasons that we have elected not to present in this motion because they have already been adequately presented to Your Honor. By making this motion, Spamhaus does not waive, and expressly reserves, any and all other grounds for appeal of the Court's judgment.

Just from that, it's clear Spamhaus is prepared to take this to the Court of Appeals (again) if the judge doesn't reconsider. In my lay reading of the law, and the memo in support of motion to alter judgement I don't think Spamhaus is out of line in asking for the judge to reconsider. I expect that if the judge doesn't reconsider, then we'll see an even more aggressive filing taking it up to the Court of Appeals.

I think that John Levine said it best, though, in his recent post about the issue:

I'm sure that Judge Korcoras is very, very, sorry he ever heard of Spamhaus or E360

By Laura Atkins, Founding partner of anti-spam consultancy & software firm Word to the Wise. More blog posts from Laura Atkins can also be read here.

Related topics: Law, Spam

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