Further amendment would be futile
- Motion to dismiss (Microsoft, Yahoo)
- A comparison of the original complaint and the first amended complaint (Microsoft redline, Yahoo Redline)
- A request for judicial notice of the MAAWG Abuse Desk Common Practices document.
The motions to dismiss the first amended complaint are not that different from the original motions to dismiss. This isn’t that unexpected as the first amended complaint isn’t that different from the original complaint. In fact, the comparison between complaints is intended to show how little Holomaxx changed or improved their arguments. The request for judicial notice just asks the court to look at the MAAWG Abuse Desk Common Practices Document because Holomaxx quoted so extensively from the document.
The Yahoo lawyers don’t pull any punches in their motion and, in fact, seem to be treating this as an annoyance to be ridiculed. That’s not to say that their motion is not serious, they are very clearly defending their right to block mail and lining up all the precedents to support them. But, they don’t ignore an opportunity to deride Holomaxx and call them spammers.
This lawsuit is about Plaintiff Holomaxx Technologies’ failed attempt to exploit Yahoo!’s network, servers and users to deliver millions of Plaintiff’s for-profit email advertisements every day. Plaintiff wants a free ride on Yahoo’s systems, expecting Yahoo! to underwrite the operating costs of Plaintiff’s bulk email blasts, and Yahoo’s users to bear the convenience costs of inboxes clogged with unwanted junk mail. Plaintiff has no such right, and Yahoo! no such duty. […]
While Plaintiff has tried to add new factual allegations to evade the broad immunities provided by the CDA, and in response to the pleading deficiencies identified by this Court in its Order, those allegations are conclusory, irrelevant, and internally inconsistent. […] In an attempt to demonstrate “bad faith” and to try to plead around the CDA and this Court’s Order, Plaintiff alleges that Yahoo!’s spam filtering violated objective industry standards, and that Yahoo! targeted Plaintiff for filtering in an attempt to disadvantage Plaintiff in the marketplace and to enhance Yahoo’s own relative competitive position as an advertiser. These are the only new “facts” alleged, and Plaintiff is wrong on both counts.
The “objective industry standards” Plaintiff now advances are nothing more than a six year old pastiche of meeting notes from an industry working group that was formed to streamline the handling of abuse complaints in the abuse desk environment. These notes do not appear to be intended to apply to inbound spam (as opposed to abuse from within one’s own network), and certainly do not function as an “objective” yardstick for evaluating the alleged bad faith of ISP filtering decisions with respect to inbound spam.
They even ended their motion by reminding the court that they said that letting Holomaxx refile would be futile.
Plaintiff has now had the benefit of this Court’s analysis of the shortcomings of its original Complaint, and the opportunity to correct those deficiencies in the FAC. Yet all the fatal flaws in the original Complaint remain in the FAC. Accordingly, this case should be dismissed without further leave to amend. Plaintiff has shown that further amendment would be futile.
A hearing is scheduled in San Jose on July 15th. I’m going to try and make it down, if only so I can shake the hand of the Yahoo lawyer that has made reading their pleadings so entertaining.
Previous blog posts on the Holomaxx case:
- Holomaxx Status
- Amendment is futile, part 2
- Holomaxx v. MSFT and Yahoo
- Amendment is futile
- Email and law in the news
- Holomaxx dismisses part of lawsuit
- Comments on Holomaxx post
- The myth of the low complaint rate