Gordon v. Virtumundo, Inc.

Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn, the sole shareholder of both companies (collectively, Virtumundo) (defendants) engaged in online marketing, which involved wide dissemination of emails to potential customers on behalf of third-party clients. James S. Gordon and his company Omni Innovations, LLC (collectively, Gordon) (plaintiffs) sued Virtumundo under the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2008, alleging that Virtumundo had sent approximately 13,800 misleading emails to email accounts that Gordon had set up for others by leasing site space from GoDaddy.com (GoDaddy). Virtumundo moved for summary judgment. The record indicated that: (1) GoDaddy owned, housed, maintained, and configured the hardware through which GoDaddy provided Gordon with his online space; (2) Gordon had no physical control over nor access to GoDaddy’s hardware; (3) Gordon’s email service was limited to using a control panel accessed via an ordinary internet connection through an internet-service provider (ISP) to establish email accounts and login passwords and to perform other administrative tasks; and (4) Gordon did not hire any additional personnel, nor did he experience technical problems or costs associated with Virtumundo’s emails. The district court granted Virtumundo’s motion, finding that: (1) Gordon did not qualify as a provider of internet-access service (IAS) under the CAN-SPAM Act, and (2) the harm of which Gordon complained was not “real and of the type uniquely experienced by IASs for standing to exist” under the act. Gordon appealed.