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Would you like to know what keeps me going at this? What makes a lawsuit interesting enough to me to track? What keeps me looking at lawsuits and turning PDF documents into text for your reading pleasure. Sheer incompetence.
No, I don't mean that I'm incompetent. I mean when an attorney pulls a REAL boner. The glaring kind of mistake that turns an ordinary lawsuit into a train wreck waiting to happen. The kind of thing that you can get so distracted about that by the end of the lawsuit you're on the horn to your malpractice carrier, because failure to notify constitutes a waiver of coverage.
There's one here. In this document. It's the kind of mistake that I hear spammers make all of the time, but never thought I'd see in an actual legal defense under CAN-SPAM.
"What mistake is that?" you ask. Quinstreet's 6th Affirmative Defense. It's a beaut. They are claiming, as an affirmative defense, under the CAN-SPAM Act, that the Plaintiff failed to opt-out of their mailings.
The CAN-SPAM Act provides for no defenses, affirmative or otherwise, in its text. The only thing that it provides is for a reduction in damages if the mailer tried really, really hard to comply with the Act.
It is entirely possible that this lawsuit may serve to teach email senders that the mere provision of an opt-out method is not a magical Get Out Of Lawsuit Free card. Yes, it's important, but you can't claim "I would have let him opt-out if he had only asked" as a defense against all of the other things mandated in the statute.
MARK FERGUSON, a married individual,
ACTIVE RESPONSE GROUP, an New York
QUINSTREET, INC.'S ANSWER TO COMPLAINT
COMES NOW defendant QUINSTREET, INC. and in answer to plaintiffs Complaint for Penalties and Damages herein, admits, denies, and alleges as follows:
1. Defendant admits the allegations of Paragraphs 1, 8, and 9.
2. Defendant admits that it is a corporation with its principal place of business in the State of California. Defendant denies the remaining allegations of Paragraph 4 of the Complaint.
4. Defendant has insufficient information to admit or deny the allegations of Paragraphs 2,3,5,6, 10, 11, 12, 13, 14, and 15 of the Complaint and therefore, on the basis of such lack of information and belief, denies all of the allegations of said Paragraphs.
5. Defendant denies each and every allegation contained in Paragraphs 16, 17, 18, 19, 20, 21, and 22 of the Complaint.
6. Further answering said Complaint, defendant denies that plaintiff is entitled to any damages, penalties, statutory damages, general damages, special damages, attorney fees, interest, injunctive relief, or any other relief as a result of any act, conduct, or omission on the part of this defendant.
7. AS AND FOR A FIRST AFFIRMTIVE DEFENSE, this answering defendant alleges that plaintiff lacks standing to assert the claims herein.
8. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff s Complaint and each cause of action contained therein fails to state a claim for relief.
9. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff intercepted one or more of the subject e-mails that were not intended to be sent to or received by plaintiff.
10. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff was not the intended recipient or addressee of one or more of the subject e-mails.
11. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff expressly or impliedly consented to receipt of one or more of the subject e-mails.
13. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs Complaint and each cause of action therein is barred by the Doctrine of Unclean Hands as a result of plaintiffs own wrongful conduct.
14. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, this answering defendant alleges that RCW 19.190.010-.1 10 and/or RCW 19.86.010-.170 are preempted by the "CAN SPAM Act of2003" and, accordingly, plaintiffs Second and Third Causes of Action are not legally cognizable.
15. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff has no private remedy against defendant and that any claimed violation of law may only be enforced by the Federal Trade Commission and/or the Washington Attorney General.
16. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, this answering defendant alleges pursuant to RCW 4.22.070(1) that any alleged damages were caused in whole or in part by the fault of another entity and/or a nonparty.
17. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff s Complaint and each cause of action contained therein is bared in whole or in part by one or more statutes of limitations including, but not limited to, RCW 4.16.130 and RCW 19.86.120.
1. That plaintiff s Complaint be dismissed and judgment entered in favor of defendant QUINSTREET, INC.;
2. That defendant be awarded reasonable attorney's fees against plaintiff;
3. That defendant be awarded its costs of suit; and
4. For such other further relief as the court deems just and proper.
DATED this 26th day of September, 2007.
s/Todd R. Sorensen
John A. Knox, WSBA #12707
Stephan A. Barber (California SBN 70070)
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