Anti-spam activist loses court battle

A Seattle man who has been actively pursuing spammers in King County District Court has been hit with a nearly $7,000 judgment to cover a spammer's attorney fees, stunning the man and his lawyers.

It may be the first and heaviest financial setback for the band of Puget Sound area spamfighters who have taken matters into their own hands by using Washington state's anti-spam law to seek redress against junk e-mailers. It is also a sign that some spammers are deciding to fight back.

The Florida-based spammer that Joel Hodgell went after is well known to anti-spam activists. Hodgell sued Daniel Amato and his business, Samson Distributing, also known as SDI Labs, in King County District Court's small-claims division in Seattle. Also named as a defendant was Amato's father, George Amato, who apparently is Samson's registered agent.

According to Spamhaus.org, a major anti-spam Web site, various Internet service providers have kicked Daniel Amato off their networks for sending bulk e-mails promoting anabolic bodybuilding supplements.

Hodgell said he received that spam and wanted to recover up to $500 for each one. He claimed the Amato-generated computer messages violated Washington's anti-spam law by including a misleading subject line, disguising their transmission path across the Internet or using a phony return address.

Hodgell originally filed in District Court's small-claims court division, where lawyers don't generally appear.

After deciding he wanted to recover more than $4,000 — the limit in small claims — he moved the case to District Court, which has a $50,000 limit on damages.

But instead of failing to appear and losing by default, as sometimes happens in spam cases involving out-of-state defendants, the Amatos hired a lawyer.

And on July 22, District Court Judge Eileen Kato imposed a $6,925 judgment against Hodgell to compensate Seattle attorney Derek Newman, the spammers' lawyer.

It's not clear what grounds Kato relied on in dismissing Hodgell's complaint in June. The judge was unavailable for comment. Her order lists several possible grounds to support the dismissal.

According to Newman, who prepared the order, the chief basis of Kato's decision was "personal jurisdiction." In other words, the judge agreed with Newman's position that his clients could not reasonably expect to be hauled into court in Washington state for "sending something blindly over the Internet," Newman said.

Hodgell takes a different view, maintaining that he lost because he made a technical mistake, naming the Amatos instead of their company in his complaint.

Hodgell last week vowed not to pay the judgment. He described Kato as incompetent.

"I do not plan on paying such an unfair judgment awarded by a clearly unfair judge," said Hodgell, who works as a business developer, helping to create new products and services.

He noted he has successfully sued other spammers and has several other spam cases pending.

Hodgell's lawyers, Michael Tomkins and Dietrich Biemiller, said they asked Kato to hold off imposing any fees to give them a chance to fix procedural problems.

"She was unmoved," said Tomkins, who characterized the amount awarded as excessive.

"We were stunned," he said.

By contrast, Newman maintained the sum was fair.

Meantime, Hodgell and his lawyers say they plan to refile the case in U.S. District Court or in King County Superior Court. But they can expect Newman to oppose them there, too.

Newman asserts that his clients' e-mails did not violate any of the provisions of the state's 1998 anti-spam statute.

"It is a shame that a law with such good intent is being misused by Hodgell and others looking for a quick buck," he said.

Neither Hodgell's lawyers, who represent other anti-spam activists, nor Steve Larsen, who heads the cyber-crime unit in the state attorney general's consumer-protection division, were aware of any county District Court cases in which spammers have emerged with such a large award for attorney's fees.

Ever since last summer, when the state Supreme Court resurrected the Washington's anti-spam statute after a lower court had struck it down as unconstitutional, the rate of complaints against spammers has picked up.

Exact numbers are not yet available because the courts are just now implementing a special code to track them.

Spam fighters say county District Court judges, who also sit as small-claims judges, have applied the law inconsistently, with some allowing complaints against out-of-state spammers and others holding there are jurisdictional problems.

Earlier this year, for example, District Court judges in Bellevue decided to ban such cases in their small-claims division, but other District Court judges have decided otherwise.

As a result of the legal uncertainty, about three months ago the state Attorney General's Office changed the advice on its Web site, www.wa.gov/ago/clearinghouse/consumer/junkemail/home.html. The office now recommends that people interested in suing out-of-state spammers do so in district or superior court. The downside is higher legal costs.

It's possible that state lawmakers next year will amend statutes to clearly extend the jurisdiction of small-claims courts to allow spam cases to be brought, said Larsen of the Attorney General's Office.

Meantime, the spam keeps coming. In June, anti-spam filtering company Brightmail recorded 4.8 million spam attacks — each consisting of thousands or even millions of e-mails containing the same pitch.

That's a fivefold increase from a year earlier, with one explanation being that spammers are sending out e-mail at higher volumes because filters are better at blocking messages.

Peter Lewis: 206-464-2217 or plewis@seattletimes.com.