Still futile

As I mentioned last Thursday, both Yahoo and Microsoft filed oppositions to Holomaxx’s opposition to dismissal. Let me ‘splain… no, there is too much, let me sum up.
Holomaxx sued both Microsoft and Yahoo to force MS and Yahoo to stop blocking mail from Holomaxx.
The judge dismissed the initial complaint with leave to amend.
Holomaxx filed a first amended complaint.
Microsoft and Yahoo both argued that the first amendment complaint should be dismissed because it wasn’t fixed.
Holomaxx filed a motion in opposition to the motion to dismiss. Their arguments were reasonably simple.

  1. MAAWG is a standards setting body and Yahoo and Microsoft are violating the standards set by MAAWG.
  2. We assert that both Yahoo and Microsoft are screening our emails before our emails hit their system thus it qualifies as wiretapping.
  3. Our emails are confidential.
  4. We compete with Microsoft and  Yahoo as advertising agencies, thus everything the ISPs are doing is anti-competitive behaviour.

Last week I discovered that both Microsoft and Yahoo filed another memo of law in support of its motion to dismiss the first amended complaint. Their arguments, too, were relatively simple.

  1. The MAAWG document in question is not a standards document, it is a summary of current practices.
  2. Holomaxx can’t explain how they think the “wiretapping” is happening and they should not be allowed discovery in order to create this argument.
  3. Neither ISP is actually a competitor of Holomaxx.

I think Yahoo’s lawyers, again, summed it up.

Plaintiff has had and squandered the opportunity to meaningfully amend its pleadings to state a plausible claim based on well pleaded facts and viable legal theories. Further amendment would be futile and should be denied.

The hearing is currently scheduled for 9am on Friday in San Jose.

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Amendment is futile, part 2

When Yahoo filed for dismissal of the Holomaxx complaint, they ended the motion with “Amendment would be futile in this case.” The judge granted Yahoo’s motion but did grant Holomaxx leave to amend. Holomaxx filed an amended complaint earlier this month.
The judge referenced a couple specific deficiencies of Holomaxx’s claims in his dismissal.

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Email and law in the news

A couple things related to the intersection of email and law happened recently.
The 6th circuit court ruled that the government must have a search warrant before accessing email. The published opinion is interesting reading, not just because of the courts ruling on the law but also because of the defendant. Berkeley Premium Nutraceuticals toyed with spamming to advertise their product as a brief search of public reporting sites shows. The extent and effort they went to in order to stay below the thresholds for losing their merchant accounts is reminiscent of the effort some mailers go through to get mail through ISP filters.
The other bit of interesting reading is the Microsoft motion to dismiss the case brought against them by Holomaxx. It is a relatively short brief (33 pages) and 3 of those pages are simply a listing of the relevant cases demonstrating ISPs are allowed to filter mail as they see fit. 2 more pages are dedicated to listing the relevant Federal and State statutes. I strongly encourage anyone considering suing any large ISP to to read this pleading. These lawyers understand email law inside and out and they are not going to mess around. They also have both statute and case law on their side. They point this out before the end of page 1:

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Gathering data from PACER

I had someone ask on Facebook about getting some documents off of Pacer. I thought the information may be of use to other people out there.
PACER (public access to court electronic records) provides access to public documents filed in the Federal court system. Each court has their own website, but there is one login and the search and document display are the same. Documents cost 8 cents a page, capped at $2.40 for a single document.
Access to PACER isn’t always immediate. When I signed up there was a 7 – 10 day delay as usernames and passwords were sent by mail. There does seem to be a way now to get a password faster, for those of you who want data NOW!
Once you’ve got a username and password now you’re in business and can start digging up all these documents.
The first step is determining which court website to check. Generally, I’m looking for details because I saw a news report that does mention what court the case was filed in. So I just plug the court name (Northern District of California) in a search window and go from there. PACER also provides the facility to look up where a case is on their website. This wasn’t an option when I signed up for PACER so I’ve never used it, but it is there.
The court websites are often not very flashy (Web 0.5!) but there will be a link to retrieve documents or view documents through PACER. This is the link that will take you to the login page.  Put in your username and password and click go. If you’re not filing, you don’t need to bother with the checkbox for the Notice of Redaction Responsibility to get in, nor do you need to add a client code.
Once you’re logged in you’ll notice a blue bar across the top of the page. This is your (web 0.5!) navigation bar. Click on Query to bring up the case search window. If you have the actual case number, you can put that in the top box and hit search. Otherwise, you can enter in a party name. For my recent research, I just enter “holomaxx” in the box marked Last/Business Name and click Search. Being web 0.5! you have to actually click the button, pressing enter doesn’t work.
That will take you to the Select a Case window. In this case, Holomaxx is a safe search because it brings up exactly the two cases I’m interested in: Holomaxx v. Yahoo and Holomaxx v. Microsoft. Clicking on the case number brings up a window with some basic information (the judge, last filing date) and a number of links.
The link that will show you documents is, unsurprisingly, History/Documents. Click there, and click again on All events to bring up a list of documents filed with the court.
The first column is a clickable link that lets you look at the document. The second column is that date it was filed. The third column is the title of the document. Generally when I’m looking at a new case I grab something that looks like “complaint” or “motion” to orient myself.
When I’m looking at PACER I tend to download everything I look at on a case, just so I only have to pay for it once. I also make extensive use of tabs and new windows, so I don’t have to reload the case page.
Download names vary by the actual court. For instance, the Northern California court gives me all the documents with the same name: show-temp.pl. But other courts give names like 384972395.pdf. In either case, you’re going to want to rename the documents to something useful before you have a disk full of show-temp-*.pl files. In some cases, there are documents and exhibits in a single filing. You will be asked if you want to download everything as a .zip file. I suggest you do this.
For a while I was trying to name things intuitively but then gave up because it gets too confusing. My current organizational technique is to set up a directory with the case name HolomaxxvYahoo_4926 and HolomaxxvMS_4924. The numbers are the last 4 digits of the case number and are there to make it easier to file and sort documents.
If you download a zip file, it opens up a directory containing all the files. The courts name these pretty simply: documentnumber-main.pdf, documentnumber-1.pdf, documentnumber2.pdf. The document numbers correspond to the order the documents were filed with the court. Once the file is unzipped, I copy the files into the directory I’ve set up for that case.
Now that you have the documents somewhat organized, you can shut PACER down and go read at your leisure. If you spend more than $10.00 on documents in a quarter, then you will get a bill from the Federal court system. If you haven’t spent that much, the court doesn’t bother billing you that quarter.
Some state courts have similar systems, but not all of them do and you can’t use a PACER login to access them.
In the course of writing this, I discovered new documents filed in the Holomaxx case filed by the defenands. Tune in tomorrow. Same bat-time. Same bat-blog.

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