972 F. Supp. 2d 748
D. Maryland2013Background
- Hypertouch is a California ostensible ISP; BSI is a Maryland EMSP/ICSP; Kraft/Connexus target Gevalia emails; Phase I found BSI bona fide ISP/EMSP; Phase II found BSI not bona fide; court denied JNOV and granted summary judgment to Kraft/Connexus, denying BSI standing and finding consent to harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is BSI barred from suing for lack of standing | BSI is an ICSP/EMSP under MD/CA statutes | BSI not bona fide; lacks injury-in-fact | BSI lacks standing under both statutes |
| Must a service provider be bona fide to sue | Statutes do not require bona fide status | Bona fide requirement implied to avoid abuse | BSI not bona fide; cannot sue |
| Does consent to receive spam bar BSI’s claim | Consent is not a defense in these statutes | Volenti non fit injuria applies; BSI consented | Consent bars BSI's claims |
| Does CAN-SPAM preemption affect state anti-spam claims | States’ claims can proceed alongside CAN-SPAM | Preemption narrows state actions to fraud/deception | Preemption considerations discussed; outcome grounded in standing/consent rulings |
Key Cases Cited
- Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009) (CAN-SPAM preemption and standing context for ISPs)
- Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006) (CAN-SPAM preemption and state-law regulation balance)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) (Proposition 64 standing restrictions; economic injury focus)