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Anti-Spammer Gordon Smacked with 'Vexatious-Litigant' Ruling: Lawyer

12/13/11

By Ken Magill

If serial anti-spam litigant James Gordon had put his time and energy into, say, energy research, we’d probably be off fossil fuels by now.

However, he chose instead to file nuisance lawsuits against companies he claims spammed him—24 suits in all, by one lawyer’s reckoning.

But new developments indicate the courts may have had enough of Gordon.

He has just been ruled a “vexatious litigant” in an action against email marketing firm Virtumundo, according to Virtumundo’s lawyer, Derek Linke, an attorney with Newman/DuWors, a firm that has defended multiple companies against Gordon’s lawsuits.

Vexatious litigant is a legal term for people who abuse the system.

Gordon has sued Virtumundo three times, according to Linke.

That is, Gordon sued Virtumundo twice after he lost his first suit against the email marketer in which a state court awarded Virtumundo $111,000.

What is more, when he filed his second suit against Virtumundo, Gordon was appealing the $111,000 decision to the Ninth Circuit Court of Appeals.

“We got most of the claims [in the second suit] dismissed right away,” said Linke. “The court stayed some of them because Gordon had filed a second round of appeals in the Ninth Circuit.”

At one point, Virtumundo’s lawyers sent the $111,000 judgment to collections and offered to stop if Gordon would drop the appeal, said Newman/DuWors attorney Derek Newman in a 2009 interview.

But rather than drop the appeal, Gordon opted to have sheriffs confiscate some of the contents of his house, which were then sold at auction, according the Linke.

“I think he’s a very driven man,” said Linke.

But the courts have apparently now had enough.

It was the third suit against Virtumundo that drew a vexatious-litigant ruling, according to Linke. The ruling has significant ramifications, and this is at least the second time Gordon has drawn it.

According to USLegal.com, a vexatious litigant “generally is someone who files a lawsuit with the knowledge that it has no legal basis with the purpose to annoy or embarrass and cause legal expenses to the opposite party. A vexatious litigant repeatedly relitigates or attempts to relitigate even after discovery of the facts that show the issues have absolutely no merit.”

The motion filed to have Gordon declared a vexatious litigant in the third action against Virtumundo was granted several weeks ago and should be published within the next month or so, according to Linke.

“Ultimately, the Franklin County Superior Court is going to enter an order holding that Gordon is a vexatious litigant and forbidding him from filing any complaints relating to commercial email advertising against Adknowledge or Virtumundo until he has paid back every penny--$150,000 in total—of the various sanctions we’ve got against him,” said Linke, referring to the $111,000 judgment and other sanctions he said Newman/DuWors has been able to get against Gordon.

Gordon originally sued Virtumundo and sibling company Adknowledge in 2006 under the federal Can-Spam Act and Washington state law, alleging that between August 21, 2003 and Feb. 15, 2006, he and others received 13,800 misleading commercial e-mails from them at his free e-mail service Gordonworks.com.

He sought more than $2.3 million in statutory damages.

However, the Seattle court tossed Gordon’s case and awarded Virtumundo $111,440 in legal fees and expenses in spring of 2007.

Gordon appealed that ruling to the Ninth Circuit.

In February of 2008, Gordon sued Virtumundo in state court a second time, according to Linke.

In 2009, the Ninth Circuit dismissed Gordon’s first case against Virtumundo. The second case remains open, Linke said.

In March of this year, Gordon filed his third lawsuit against Virtumundo, according to Linke.

“The third one was filed after the second one had been stayed and that’s the one that the judge has held that Gordon is a vexatious litigant,” said Linke. “Gordon will probably contest the ruling.”

As a result, the suit will probably drag on for another year, Linke added.

According Linke, vexatious-litigant rulings are very rare.

All three lawsuits against Virtumundo are substantially the same, he said.

“He’s added different kinds of claims to try and make it look different over the years, but courts get it,” Linke said.

Apparently so. Gordon was also ruled a vexatious litigant in a ruling in April in which Washington’s Eastern US District Court dismissed a lawsuit he filed against BAC Home Loans Servicing.

“Plaintiff has had numerous ‘bites at the apple’ and has repeatedly and unsuccessfully made the same allegations under the same legal theories against different defendants in different cases,” the ruling said. “The plaintiff has become a vexatious litigant whose lengthy ‘shotgun pleadings’ force the court to engage in a time consuming process of determining whether he has stated any claims for relief.”

Gordon also recently suffered significant losses in the Ninth Circuit Court of Appeals.

In November, the Ninth Circuit issued three memoranda affirming his losses in suits against BMG Columbia House, Commonwealth Marketing Group, and Inviva, which does business as American Life Direct and American Life Insurance Co. of New York.

“I think that’s the end of the line for Gordon’s federal cases,” said Linke.

One can only hope.

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