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Here's the Bradford Exchange's Answer to the lawsuit.

The affirmative defenses are interesting. Most of the affirmative defenses are prophylactic in nature (they're there just in case, because failure to assert a defense is a waiver of the defense). Here, in Texas, those don't carry much weight because, by and large, not only must you assert the defense, you must actually pursue the defense.

What Bradford is really banking on is Affirmative Defense #11: "Plaintiff lacks standing to assert the claims alleged in his Complaint." This is the same defense that sunk James Gordon in Gordon v. Virtumundo.

Also present are defenses about the doctrine of "unclean hands" (which is a legal way of saying that Ferguson is a scoundrel and unethical litigant), "estoppel" (which is a legal way of saying that Ferguson is two-faced, although what I suspect that they're trying to do is use estoppel to sneak in the Gordon decision as something that prevents Ferguson from asserting his claim), and laches (which is a legal way of saying "WAAAAH! Mean Mark Ferguson is ambushing us!").

A semi-interesting defense is #10. It basically says that "if we did it, we didn't mean to."

==============================
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MARK FERGUSON, a married individual
d/b/a WHEW.COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, a New
York company; THE BRADFORD
EXCHANGE, LTD., an Illinois
corporation, QUINSTREET, INC., a
California corporation; VISION CARE
HOLDINGS, LLC, a Florida limited
liability company; NAUTILUS, INC., a
Washington corporation; and JOHN
DOES, I-CC,
Defendants.

DEFENDANT THE BRADFORD EXCHANGE, LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT

Defendant THE BRADFORD EXCHANGE, LTD (“Bradford Exchange”) answers

Plaintiff’s Complaint and asserts affirmative defenses as follows:

I. ANSWER
1. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 1 of Plaintiff’s Complaint and on that basis DENIES those allegations.

2. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 2 of Plaintiff’s Complaint
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and on that basis DENIES those allegations.

3. Bradford Exchange ADMITS that it is a corporation with its principal place of business in Illinois. Bradford Exchange DENIES all remaining allegations in Paragraph 3 of Plaintiff’s Complaint.

4. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 4 of Plaintiff’s Complaint and on that basis DENIES those allegations.

5. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 5 of Plaintiff’s Complaint and on that basis DENIES those allegations.

6. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 6 of Plaintiff’s Complaint and on that basis DENIES those allegations.

7. Paragraph 7 of Plaintiff’s Complaint is a legal conclusion to which no response is necessary and the statutes cited in Paragraph 7 of Plaintiff’s Complaint speak for themselves. Plaintiff’s interpretation of those statutes is not a factual allegation which must be admitted or denied. Bradford Exchange DENIES all remaining allegations in Paragraph 7 of Plaintiff’s Complaint.

8. Paragraph 8 of Plaintiff’s Complaint is a legal conclusion to which no response is necessary and the statute cited in Paragraph 8 of Plaintiff’s Complaint speaks for itself. Plaintiff’s interpretation of that statute is not a factual allegation which must be admitted or denied. Bradford Exchange DENIES all remaining allegations in Paragraph 8 of Plaintiff’s Complaint.

9. Paragraph 9 of Plaintiff’s Complaint is a legal conclusion to which no response is necessary and the statute cited in Paragraph 9 of Plaintiff’s Complaint speaks for itself. Plaintiff’s interpretation of that statute is not a factual allegation which must be admitted or denied. Bradford Exchange DENIES all remaining allegations in Paragraph 9
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of Plaintiff’s Complaint.

10. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 10 of Plaintiff’s Complaint and on that basis DENIES those allegations.

11. Bradford Exchange DENIES all allegations in Paragraph 11 of Plaintiff’s Complaint.

12. Bradford Exchange DENIES all allegations in Paragraph 12 of Plaintiff’s Complaint.

13. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 13 of Plaintiff’s Complaint and on that basis DENIES those allegations.

14. To the extent that the allegations in Paragraph 14 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 14 of Plaintiff’s Complaint and on the basis DENIES those allegations.

15. To the extent that the allegations in Paragraph 15 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 15 of Plaintiff’s Complaint and on the basis DENIES those allegations.

16. To the extent that the allegations in Paragraph 16 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 16 of Plaintiff’s Complaint and on the basis DENIES those allegations.

17. To the extent that the allegations in Paragraph 17 of Plaintiff’s Complaint
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refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 17 of Plaintiff’s Complaint and on the basis DENIES those allegations.

18. To the extent that the allegations in Paragraph 18 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 18 of Plaintiff’s Complaint and on the basis DENIES those allegations.

19. To the extent that the allegations in Paragraph 19 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 19 of Plaintiff’s Complaint also contains legal assertions to which no response is necessary. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 19 of Plaintiff’s Complaint and on the basis DENIES those allegations.

20. To the extent that the allegations in Paragraph 20 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 20 of Plaintiff’s Complaint also contains legal assertions to which no response is necessary. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 20 of Plaintiff’s Complaint and on the basis DENIES those allegations.

21. To the extent that the allegations in Paragraph 21 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 21 of Plaintiff’s Complaint also contains legal assertions to which no response is necessary. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 21 of Plaintiff’s Complaint and on the basis DENIES those allegations.

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22. To the extent that the allegations in Paragraph 22 of Plaintiff’s Complaint
refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 22
of Plaintiff’s Complaint also contains legal assertions to which no response is necessary.
Bradford Exchange is without knowledge and information sufficient to form a belief as to
the veracity of the remaining allegations in Paragraph 22 of Plaintiff’s Complaint and on
the basis DENIES those allegations.

II. AFFIRMATIVE DEFENSES

Without admitting any allegations in Plaintiff’s Complaint, Bradford Exchange asserts the following affirmative defenses:

1. Plaintiff is barred from obtaining any relief sought in his Complaint because Plaintiff’s Complaint fails to state any claim upon which relief may be granted.

2. Plaintiff is barred from obtaining any relief because Plaintiff failed to mitigate his alleged damages, if any.

3. Plaintiff is barred from obtaining any relief because Plaintiff subscribed to receive commercial emails on which Plaintiff bases his Complaint.

4. Plaintiff is barred from obtaining any relief sought in his Complaint under the doctrine of unclean hands as a result of his own conduct.

5. Plaintiff waived his claims.

6. Plaintiff’s claims are barred by the doctrine of estoppel.

7. Plaintiff’s claims are barred by the doctrine of laches.

8. The damages alleged in Plaintiff’s Complaint, if any, were not caused by Bradford Exchange, but were caused by one or more third parties whose activities were not approved, ratified, or controlled by Bradford Exchange.

9. Plaintiff has failed to join one or more necessary and indispensable parties.

10. To the extent any action by Bradford Exchange violates the CAN-SPAM Act, 15 U.S.C. § 7701 et seq. (“CAN-SPAM”), Bradford Exchange acted without actual
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knowledge, or knowledge fairly implied on the basis of objective circumstances, of the act or omission that constitutes the violation.

11. Plaintiff lacks standing to assert the claims alleged in his Complaint.

12. Plaintiffs claims under Washington’s Commercial Electronic Marketing Act, WASH. REV. CODE § 19.190.010 et seq., are preempted by CAN-SPAM.

III. PRAYER FOR RELIEF

WHEREFORE, Defendant BRADFORD EXCHANGE, LTD. respectfully requests that the Court enter judgment against Plaintiff and in favor of Bradford Exchange as follows:

1. Judgment Dismissing Plaintiff’s Claims. That the Court enter judgment dismissing Plaintiff’s claims against Bradford Exchange alleged in the Complaint and denying Plaintiff’s requested relief.

2. Attorneys’ Fees and Costs. That the Court award Bradford Exchange its reasonable attorneys’ fees and costs incurred in defending this lawsuit.

3. Other Equitable Relief. That the Court grant such other and further relief to Bradford Exchange as the Court shall deem just and equitable.

DATED this 14th day of November, 2007.

Respectfully Submitted,

NEWMAN & NEWMAN,
ATTORNEYS AT LAW, LLP

BY:
Derek A. Newman, WSBA No. 26967
Derek Linke, WSBA No. 38314
Attorneys for Defendant
THE BRADFORD EXCHANGE, LTD

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AnswerBradford.pdf	12/04/07 2:59 pm	34.44 KB