The Spam Diaries

News and musings about the fight against spam.
 by Edward Falk

Wednesday, July 02, 2008

Judge rejects Linhardt's request to be dismissed from Comcast lawsuit

When a judge's ruling starts with "I have before me a largely misguided motion...", you know it's a bad day for whoever filed it.

In January, E360 filed a lawsuit against Comcast in the hopes that they could force Comcast to accept E360's spam. E360 lost that suit.

In March, Comcast counter-sued E360 and its owner Dave Linhardt for spamming. This suit is still ongoing.

In April, E360 filed a motion to dismiss, asking among other things, that Linhardt be dismissed from the suit under the theory that he was only doing his job as officer of the corporation, and only the corporation should be held liable.

Today, Judge Zagel ruled against E360 on almost every single point. Most significantly, Linhardt will remain part of the lawsuit:

This leaves the final point, which seeks dismissal of the only natural person among the Counter-Defendants, Linhardt. What is offered to support his dismissal from the claims is the rule which protects corporate officers from personal liability for misdeeds of the corporation. However, this rule does not cover corporate officers who are alleged to direct and control the corporation. It is difficult to seek shelter in this rule when one is alleged to be the whole owner and controller of the all the corporations involved, as is the case here. And there are allegations of specific actions by Linhardt which would establish his liability, i.e., that he deliberately lied to Comcast when he orally stated that all intended e-mail recipients have opted in to receive the emails and that he ordered the abuse of process.

The only piece of the lawsuit the judge was willing to dismiss was Comcast's "unjust enrichment" claim which E360 asked to have dismissed and which Comcast didn't even bother to argue. The judge has dismissed this claim, but mentioned — practically invited — that Comcast was free to re-plead this count after discovery.

Also of interest is the Judge's reference to Linhardt's habit of repeatedly dropping and re-filing lawsuits. This is a judge who knows E360 for what they are and won't be letting them get away with any bullshit.

If only Susan Gunn and David Ritz had had judges with this much clue. But then, Comcast is very rich and Gunn and Ritz are not, and in the legal system, you get what you pay for.

(Speaking of which, I would like to take this opportunity to mention that David's legal battles are not over yet, and you can donate to his defense fund here.)

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