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Further amendment would be futile

Both Microsoft and Yahoo filed their motions to dismiss the Holomaxx first amended complaint (FAC). Each company filed the same set of documents.

  1. Motion to dismiss (Microsoft, Yahoo)
  2. A comparison of the original complaint and the first amended complaint (Microsoft redline, Yahoo Redline)
  3. 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:

10 comments

  1. Catherine Jefferson says

    I’d buy that lawyer a cold beer or $BEVERAGEOFCHOICE too. 😉

  2. Joe Sniderman says

    +1 <aol> meee toooo </aol>
    My favorite excerpt from the Motion to Dismiss:
    “Yahoo Has No Obligation To Deliver Plaintiff’s Emails.”
    in otherwords, “our servers, our rules.” That, alongside the 5yz street address of the law firm causes the lawyer to be worthy of a multidimensional array of @BEVERAGES

  3. Steve White says

    I would like to know…
    What qualifies as “an “objective” yardstick for evaluating the alleged bad faith of ISP filtering decisions with respect to inbound spam”
    That’s all.

  4. Catherine Jefferson says

    I’m not sure that there is a hard-and-fast standard for determining whether spam filtering is completely objective. However, if the stated goals are to keep unsolicited bulk email volumes from placing Yahoo’s servers under stress (botnet-size volumes) and to keep unsolicited bulk email out of users’ mailboxes, and the methods are demonstrably designed to do that, Yahoo should be fine by U.S. and European laws. They notify their users that they do spam filtering, with those goals. A user who uses Yahoo mail knows that use is conditional on accepting the terms of service. So users who want to have a completely unfiltered account, or an account whose filters are completely under his/her control, uses a different email service.

  5. Steve White says

    Actually Yahoo users do have the ability to turn “SpamGuard” off on their account. That’s pretty much the equivalent of running an unfiltered account.
    One of my concerns regarding Yahoo is that they have started to use a third party filter. They laid off a large portion of their anti-spam staff and brought in a vendor to handle the problem. I don’t think that was a good idea, the employees laid off spent decades at Yahoo combating the spam problem. What about the privacy ramifications of having a third party filter every message coming through? No part of the Yahoo Mail privacy policy mentions that a third party will handle the filtering. To my knowledge no major ISP: Hotmail, Gmail, AOL, etc has relied on a third party exclusively for spam filtering.
    I do think the shakedown theory put forth by the plaintiff has some merit. The Goodmail (now defunct) setup at Yahoo seems to show that paying clients would have their mail routed through a dedicated MX with little or no filtering. The key point is that this was only available for paid clients. These paid clients had more liberal complaint ratio allowances and no volume limits.

  6. Al Iverson says

    I’d like to know why people keep trying to school Steve White or even why people answer his questions. His mind is already made up that ISP spam filtering is bad. Hearing the same complaint over and over is getting boring.

  7. Steve White says

    Al,
    Actually I am not against ISP spam filtering. It’s directly due to today’s anti-spam filtering that “deliverability consultants” exist. That’s my profession and livelihood. It’s not 1999 where senders just load a list and click send. I can’t imagine a world without spam filtering.

  8. Al Iverson says

    People who believe in the grand conspiracy theories that Steve puts forth are better served by therapy than deliverability consulting.

  9. The Proverbial Barry says

    al, arent those the same thing?

  10. Holomaxx doubles down – Word to the Wise says

    […] has, as expected, filed a motion in opposition to the motion to dismiss filed by both Yahoo (opposition to Yahoo motion and Hotmail (opposition to Microsoft motion). To my […]

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