e360 in court again


Today’s edition of Magilla Marketing announced that Dave Linhardt and e360 have sued Comcast. Spamsuite.com has the text of the complaint up.
On the surface this seems quite silly. e360 is alleging a number of things, including that Comcast is committing a denial of service attack against e360 and locking up e360’s servers for more than 5 hours. Additionally, e360 is laying blame at the feet of multiple spam filtering companies, including Spamhaus, Trend Micro and Brightmail.
One of the more absurd claims is that Comcast is fraudulently transmitting ‘user unknown’ messages. At no point do they explain how or why they think this is the case, but simply assert:

Comcast has transmitted fraudulent bounce information to e360’s mail servers specific to email addresses contained on e360’s opt-in marketing list. The responses sent by Comcast mail servers to e360 are fraudulent because they contain information indicating that the email address is invalid and not active. As an email marketer, e360 relies on bounce information from Comcast’s mail servers to determine whether e360’s customer email addresses are still active and deliverable. e360 has information and reason to believe Comcast is intentionally transmitting fraudulent bounce information to e360 in an attempt to discourage e360 from sending additional email messages. By transmitting fraudulent bounce information, Comcast is effectively destroying e360’s proprietary assets and the value contained in e360’s opt-in database of email addresses. Such statements are made on information and belief as only Comcast has access to and knowledge of the accounts it has and will not allow e360’s emails to be delivered regardless of account activity.

I really do not think that Comcast is maliciously and deliberately faking that addresses are dead in order to destroy e360’s business. It just does not pass the sniff test. Why would Comcast do that? What possible benefit could there be to doing that?
Another interesting bit of the complaint is e360’s assertion they have been approved for the SenderScore Certified program offered through ReturnPath. Ken interviewed George Bilbrey. According to Ken

However, George Bilbrey, head of Return Path’s delivery assurance unit said e360 had not been certified.
“He applied and didn’t gain admittance to the program,” Bilbrey said, declining to elaborate.

The punchline is e360 is suing Comcast for around 21 million dollars because Comcast is being MEAN and, well, here’s what e360 has to say:

58. At the same time that Comcast is blocking e360’s email messages that are compliant with Comcast’s polices, Comcast is allowing other email marketers with substantially similar business practices as those employed by e360 to send email messages to Comcast’s customers.
59. Comcast’s refusal to deliver email sent by e360 while allowing its competitors to freely transmit email puts e360 at a disadvantage and creates an un-level playing field on which e360 must compete.
60. Upon information and belief, Comcast has made agreements, either written or verbal, to allow certain email marketers to send or transmit email without interruption regardless of whether such email meets Comcast’s Acceptable Use policy. Based on these agreements, Comcast has applied its policies with certain email marketers in a way that is materially different than Comcast’s application of its policies to e360’s email messages. Such statement is made upon information and belief because only Comcast can verify with whom they have agreements with to allow mail to be sent to their customers.

It will be interesting to see what happens once the judge reads the complaint. In my very non-legal opinion I am not seeing a real cause of action here. There is case law and statutory law that says ISPs have the ability to filter mail to their subscribers. Apparently e360 thinks they can convince a judge to ignore facts and law in order to make Comcast stop being mean to them.

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