Lawsuit shows how to sue spammers

Activist's six-year legal fight offers road map for suing spammers; he now awaits hefty check from firm he says spammed him.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
A recent decision in a lawsuit filed against a Florida credit counseling company offers a promising road map to follow for suing spammers.

After receiving at least nine unsolicited e-mail messages offering credit counseling services, Washington state resident Joseph Hylkema did more than just consign the spam to his junk mail folder: he decided to get even.

An investigation of the sender traced the source back to a business called The Credit Counseling Foundation in Fort Lauderdale, Fla. Hylkema, a Slashdot reader who once had an e-mail address at the aptly named Suespammers.org, filed a lawsuit in Washington claiming that Credit Counseling was spamming in violation of two state laws, and obtained a default judgment when the company never showed up to defend itself.

Washington state law allows for damages of $1,000 per e-mail message. According to an announcement that Hylkema made in March 2002, though, a judge awarded him a default judgment of $31,575.

To actually enforce the judgment, though, Hylkema had to file a second suit in Florida court, which he did through an attorney. Credit Counseling finally showed up and insisted, through a director's testimony during a hearing, that it was not a spammer. Hylkema, on the other hand, claimed that after he filled out a form offered by the spammer, he soon began receiving phone calls and e-mail messages from Credit Counseling employees.

A Florida trial judge concluded that: "The circumstantial evidence demonstrates to me that Credit Counseling either acquiesced, ratified or conspired with the actual sender of the spam to send it, and they knew what was going on and they condoned it. They ratified it. They were part of it." CNET News.com has written before about alleged mortgage spammers that work the same way.

(It probably helped that Credit Counseling never bothered to defend itself in the initial lawsuit in Washington state--which put it on the defensive when the legal action came a little closer to home.)

After some back and forth during the appeal process, a Florida appeals court, Fourth District, ruled on June 13 that the Washington court had personal jurisdiction over Credit Counseling and said the lower court's judgment would not be modified. The three-judge panel concluded: "The findings of the trial court were based upon circumstantial evidence, but the evidence was competent and substantial to support the findings made."

Credit Counseling did not immediately respond to a request for comment on Wednesday, and Hylkema could not be reached either (a phone number he listed on court documents is disconnected). The next logical step for him, though, is to force Credit Counseling to write him a check.

A few other notes:

•  The suit was brought primarily under Washington's plaintiff-friendly antispam law, which allows most people to sue for $500 in damages per unsolicited message. Hylkema, however, claimed he provided Internet access to other people and fit the definition of "interactive computer service," which permits $1,000 in damages per message.

•  In one legal document, archived on Spamcon.org, Hylkema claimed that he had first pursued Credit Counseling in small-claims court and its attorney responded: "Any judgment entered in Washington would never be enforceable in Florida." Not all state laws may be as pro-plaintiff as those in Washington, a state where the attorney general actually offered tips on how to sue spammers.

•  Lawsuits like this can take a long time. A December 2001 article by the now-defunct Newsbytes news service said Hylkema had filed his initial complaint against Credit Counseling two months earlier.

•  State laws may be pre-empted (that's lawyerese for overruled) by Can-Spam, the federal law that legalized bulk unsolicited e-mail as long as the sender follows minimal guidelines. As attorney Ethan Ackerman noted last year, the state of some state antispam laws remains uncertain. But irritated recipients of spam in Washington state seem to have found a way around the legal roadblock of Can-Spam.